Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the ‘structural congruence’ theory of Herbert Kraus, which long shaped the German reception of EU law. This article recounts Kraus' theory, tracing the struggle for the German legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While Hallstein's constitutionalism is most closely associated with Germany's early Europhilia, even he admitted by 1975 that Kraus had won the day.     

Battered women who kill: A comparative study of incarcerated participants with a community sample of battered women

The present article examines demographic and background variables, psychosocial factors, critical incidents during childhood, battering incidents, and coping methods among 210 battered women. Based on in-depth interviews with a group of incarcerated battered women who had killed their batterers and a community sample of non-violent battered women, several key results were found. The vast majority of battered women who killed their abusive partners was much more likely than the community sample to: (1) have been sexually assaulted during childhood, (2) have dropped out of high school, (3) have an erratic work history of one to three unskilled jobs, (4) have cohabited with their partner, (5) experienced a drug problem, (6) have attempted suicide by drug overdosing, and (7) have access to the batterer's guns. The findings provide support for the increased probability of battered women killing their mates after they have encountered brutal and repeated assaults, death threats, failed in their attempts to escape through alcohol or drug abuse, and failed in their attempts to commit suicide.     

Addressing Infant and Toddler Issues in the Juvenile Court: Challenges for the 21st Century

To achieve the goal of permanency for children in the child welfare system, it is critical that different disciplines work together, improve communication, and understand each other's role and expertise in the process. Through a case study, this article attempts to show the problems, conflicts, and solutions in working to ensure a child's best interests from three points of view: a children's attorney from New York City, a judge from Miami, Florida, and an infant mental health specialist and interdisciplinary trainer from Los Angeles. First, we propose that emotional caregiving is a fundamental right of all children and includes a stable, nurturing, and permanent long‐term relationship. Conflicts between the timing of children's needs, parents' needs, and the judge's legal duties are discussed as a tension with which we all must struggle to resolve if we are to successfully address children's “irreducible needs” (Brazelton & Greenspan, 2000). If the provision of custodial care shifts toward including emotional care as a goal for the growing number of infants entering the foster care system, the ensuing conflicts will provide opportunities for all parts of the foster care system—including the courts—to rethink how infants' needs are evaluated and factored into decision making.     

Teacher induction appeals

The system of teacher induction appeals as introduced by the Teaching and Higher Education Act 1998 is yet to be fully implemented. The appeals system envisaged by both the Act and subsequent regulations is still evolving and matters are made more complex by the fact that the appeals will be part of the General Teaching Council's (GTC) functions in due course. The Department for Education and Employment has had the unenviable task of drafting detailed procedures which may, or may not, be adopted by the GTC. The department's system of appeals may only apply for six months before the GTC review which may not be time enough to properly evaluate the various procedures. This article attempts to set out the current procedure and to offer some thoughts on areas which may need to be carefully monitored by both the department and the GTC.     

The University of Barchester,Coketown University,Ipswich Cathedral Choir School,Gas Street Comprehensive School and the European Convention on Human Rights: A link?

This article focuses on the European Convention on Human Rights (ECHR) and especially Article 6 entitled Right to a Fair and Public Hearing , all now fully incorporated into the UK via the Human Rights Act (HRA, 1997). This article discusses the implications for UK education institutions and the potential conflict with the exclusive jurisdiction of the Visitor in English chartered universities and colleges. Also discussed are UK schools, colleges and universities as 'public authorities' and 'emanations of the state', the creation of a Higher Education Ombudsman as a 'Super-Visitor' or 'HERO' (Higher Education Regulatory Office), the impact of HRA and ECHR less dramatic for schools than for universities (or at least for the Visitor function within them), and finally the coming three decades of legal uncertainty and fees for lawyers.     

Legislating Dangerously: Bad Samaritans,Good Society,and the Heroism Act 2015

The Social Action, Responsibility and Heroism Act 2015 is a troublesome statute. The Act requires that, when considering a claim brought against a defendant in negligence or for breach of statutory duty, the court must assess whether that party was ‘acting for the benefit of society or any of its members’ (section 2), or ‘demonstrated a predominantly responsible approach towards protecting the safety or interests of others’ (section 3), or was ‘acting heroically’ (section 4). However laudable the Coalition Government's attempts to foster a ‘Big Society’ might have been, this enactment was not the proper vehicle to achieve it. Some provisions merely repeat longstanding common law principles. Others may have been intended to amend the common law to encourage ‘good citizenship’, but fall well short of that aim. And some aspects of the Act's drafting have the (perhaps unintended) potential to sit uncomfortably with established common law negligence principles.     

RELIGION AND CRIME REEXAMINED: THE IMPACT OF RELIGION,SECULAR CONTROLS,AND SOCIAL ECOLOGY ON ADULT CRIMINALITY*

Since Hirschi and Stark's (1969) surprising failure to find religious (“hellfire”) effects on delinquency, subsequent research has generally revealed an inverse relationship between religiosity and various forms of deviance, delinquency, and crime. The complexity of the relationship and conditions under which it holds, however, continue to be debated. Although a few researchers have found that religion's influence is noncontingent, most have found support—especially among youths—for effects that vary by denomination, type of offense, and social and/or religious context. More recently the relationship has been reported as spurious when relevant secular controls are included. Our research attempts to resolve these issues by testing the religion-crime relationship in models with a comprehensive crime measure and three separate dimensions of religiosity. We also control for secular constraints, religious networks, and social ecology. We found that, among our religiosity measures, participation in religious activities was a persistent and noncontingent inhibiter of adult crime.     

Mapping Defamation Defences

The general neglect of tort defences is most significant in defamation actions. This paper attempts to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recognised as defences by the law of defamation. Defining the cause of action as an injury to the claimant's reputation, it argues that they fall into three classes: (i) defences which exclude unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant; (ii) defences which exclude blameworthiness because the defendant was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: this group, not being underpinned by recognised principles, deserves particular scrutiny. The rule of repetition should be qualified by recognition of a defence of ‘warranted republication’; the remainder should be abolished, being an anachronistic hangover from the old requirement of malice.     

Violence,Law, and Politics: Hannah Arendt and Robert M. Cover in Comparative Perspective

Despite many significant points of intersection between his work and that of Hannah Arendt, the legal scholar Robert Cover largely declined to engage her perspective, which posed major challenges to his own. While scholars seeking to rethink Cover's legacy in order to develop a jurisprudence of violence have criticized Cover's acquiescence to the Hobbesian model of the sovereign state, they have similarly ignored Arendt's critique of the Hobbesian model and her attempts to build an alternative to it. This article examines central issues of convergence and divergence between Arendt's and Cover's approaches to law, politics, and violence with the aim to redress this neglect of Arendt's perspective. It begins by focusing on their interpretations of the role and significance of the courtroom trial. It then compares their analysis of the character, effects, and implications of domination as a type of organized power and as a means of conceptualizing punishment, before it concentrates on their instrumental conception of violence, the issue of justification, and its relationship to power. The article concludes by arguing that Arendt's approach, which situates an analysis of law and violence within a broader critique of modernity, provides a more trenchant critical framework for examining the rise of the carceral state than does Cover's.     

The anonymous police blogger,the newspaper and the unmasking of Night Jack

The English High Court recently refused to grant an injunction to restrain The Times newspaper from publishing the identity of an anonymous political blogger (The author of a blog v Times Newspapers Limited [2009] EWHC 1358 (QB)). The facts of the case were unusual: there was no clearly unlawful behaviour by the blogger, who was also a police officer highly critical of political figures and policies. There was also no relationship between the blogger and the journalist who deduced the blogger's identity; the court therefore focussed on the tort of misuse of private information and countervailing public interests, such as freedom of expression. This article describes the approach of the court and considers the earlier case of Mahmood v Galloway ([2006] EWHC 1286 (QB)) concerning an undercover journalist's attempt to prevent publication of photographs showing what he looked like. It also discusses whether data protection law could have a role to play in future cases concerning attempts to preserve an online author's anonymity. The conclusion of the article is that this case does not spell the end of all anonymous blogging.     

“We are family”: Gender,microenterprise, family work,and well-being in Ecuador and the Dominican Republic — with comparative data from Guatemala,Swaziland, and Guinea-Bissau

The article analyzes the realm of family business to see what a difference the gender of the owner makes. Through the lens of the author's rapid appraisal and/or survey data from field studies in Ecuador, the Dominican Republic, Guatemala, Swaziland, and Guinea-Bissau, three main issues are examined: (1) the use of family in the family business by women and men microentrepreneurs (MEs) — i.e., differential involvement of family members in different work patterns and differential reliance on home-based businesses; (2) similarities and differences in men's vs. women's ventures (type of economic activities, gender composition of employees, loan repayment, reinvestment of profits, etc.); and (3) the impact of the business' income on the ME and his/her family well-being (using hypotheses from my general theory of gender stratification). Finally, implications are extracted concerning the consequences of women's economic empowerment, as well as for Third World microenterprise credit and savings programs.     

“We are family”: Gender,microenterprise, family work,and well-being in Ecuador and the Dominican Republic — with comparative data from Guatemala,Swaziland, and Guinea-Bissau

The article analyzes the realm of family business to see what a difference the gender of the owner makes. Through the lens of the author's rapid appraisal and/or survey data from field studies in Ecuador, the Dominican Republic, Guatemala, Swaziland, and Guinea-Bissau, three main issues are examined: (1) the use of family in the family business by women and men microentrepreneurs (MEs) — i.e., differential involvement of family members in different work patterns and differential reliance on home-based businesses; (2) similarities and differences in men's vs. women's ventures (type of economic activities, gender composition of employees, loan repayment, reinvestment of profits, etc.); and (3) the impact of the business' income on the ME and his/her family well-being (using hypotheses from my general theory of gender stratification). Finally, implications are extracted concerning the consequences of women's economic empowerment, as well as for Third World microenterprise credit and savings programs.     

(Let's) playing by the rules: A choice of law rule for communication of copyright material from video games to the public,through Let's Plays

Several proposals have been made regarding a choice of law rule for ‘ubiquitous infringements’ (the unauthorised dissemination of copyright material online) but none have been implemented by national courts, which continue to struggle with the issue of what law determines whether ubiquitous infringements have occurred. This article explores fresh solutions to that issue, focusing on the scenario where copyright material from video games is communicated to the public, through its inclusion in Let's Plays (playthroughs of video games streamed from platforms like YouTube), or where such use of that material, under the terms of a license, is contemplated. In this scenario, the issue of infringement should be governed by the law of the place of the video game developer's incorporation, as a proxy for laws qualifying as the lex loci protectionis (law of the country where protection is sought (Fawcett & Torremans (2011)), abbreviated as the LLP). Where any party can prove specific differences between the law of the place of the developer's incorporation and a law qualifying as the LLP (called State A's law for ease of reference), in aspects essential for deciding whether infringement has occurred, the forum court must issue separate rulings as to whether (i) the claimant's copyrights under State A's laws have been infringed; and (ii) the claimant's copyrights under laws besides those of State A have been infringed. Courts should also adopt, as a mandatory rule of their domestic law, a rule precluding de facto infringements of copyrights in video games and/or their constituent elements from giving rise to liability for infringement.     

Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co.

Since 1980, the Supreme Court has used a complex form of intermediate constitutional scrutiny-the Central Hudson analysis-when government regulations of commercial speech are challenged on First Amendment grounds. In Lorillard Tobacco Co. v. Reilly, the Court used this analysis for the first time to test the constitutionality of government restrictions on tobacco advertising. This article reviews the Court's commercial speech doctrine including previous treatment of governmental attempts to restrict harmful product advertising. The article then provides an overview of the national regulatory framework for tobacco advertising and analyzes the Supreme Court's 2001 opinion in Lorillard Tobacco. The article then explores the impact of the case on the Court's commercial speech doctrine and in subsequent lower court opinions.     

The European Union's approach to online behavioural advertising: Protecting individuals or restricting business?

The European Union (EU) has firmly set its stall out to protect individuals' data and privacy and has demonstrated this through the rejection of the old opt-out regime and the introduction of the new opt-in rules. These require businesses to obtain individual's prior and informed consent before their data are collected, stored and used for the purposes of online behavioural advertising (OBA). Individuals in the EU are afforded protection from the apparent dangers relating to data privacy and misuse that is associated with OBA, which is beyond the expectation of most Internet users. However, there are some criticisms levelled at the law that the EU has produced. Is simply gaining informed consent sufficient for protecting all types of information? Do certain types of information require a higher level of consent than others? Does the law fulfil its aim of protecting data subject's privacy and data? Is the current law restrictive to business? Do individuals know or care that their information is being collected for the purposes of targeted advertising and is there a better way to ensure that they do? Finally, will proposed new law to be found in the EU Data Protection Regulation solve any of these problems? This article will assess whether, as a policy decision, the EU's current approach has been too cautious in its attempts to protect individuals or restrict business.     

Deaths and COVID-19: Talk,silence and alternative realities

This article critically considers the UK Government's insidious attempts to control the narrative around COVID-19 deaths through using the interrelated strategies of “talk and ‘silence’ in order to socially construct a definitive ‘truth’” around the virus. The article traces how these strategies worked in practice and the shift which took place from numerous press briefings and Parliamentary debates to an ominous silence around the number of deaths, in particular. At the same time, as the article illustrates, the government's truth has not prevailed. Their twin strategy has been contested and resisted by grassroots organizations and radical lawyers who have demanded that Ministers should take responsibility for the tens of thousands of preventable deaths which have occurred. Rather than government talk and silence prevailing, it is the voices of the haunted relatives of the dead, demanding accountability, which are creating an alternative narrative.     

Is the label ‘minimal legislature’ still appropriate? The role of the National People's Congress in China's political system

To discuss the type of legislature, this article explores what role the National People's Congress (NPC) plays in China's political system, particularly in legislation. According to Mezey's study (Comparative Legislatures, 1979), he defines ‘minimal legislatures’ as being characterised by having little or no policy-making power and being more supported by the elite. The assumption is that the NPC is a minimal legislature, acting as a rubber stamp for the executive. This study is used to test this assumption. The findings show that the NPC does play an important role in the whole political system, especially in legislation, though the NPC has typically been under the control of China's Communist Party. The findings also call into question the continued applicability of Mezey's classic typology legislatures given the development of the Chinese legislature. A new approach for classifying legislatures is introduced based on the institutionalisation and professionalisation of a legislature.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Global Warming: Will There Be Exposure for Directors and Officers and Will It Be Covered?

This article will explore the potential legal liabilities of corporate officers and directors due to the effects of global warming on the business of their corporation, as well as the insurance coverage issues likely to arise under directors' and officers' (D&O) liability policies in light of those liabilities. The article focuses particularly on the pollution exclusion and the bodily injury and property damage exclusions, and also explores scenarios that may engender attempts by insurers to rescind the policy.