Conditional Race Disparities in Criminal Sentencing: A Test of the Liberation Hypothesis From a Non-Guidelines State

Objectives

To test the liberation hypothesis in a judicial context unconstrained by sentencing guidelines.

Methods

We examined cross-sectional sentencing data (n = 17,671) using a hurdle count model, which combines a binary (logistic regression) model to predict zero counts and a zero-truncated negative binomial model to predict positive counts. We also conducted a series of Monte Carlo simulations to demonstrate that the hurdle count model provides unbiased estimates of our sentencing data and outperforms alternative approaches.

Results

For the liberation hypothesis, results of the interaction terms for race x offense severity and race x criminal history varied by decision type. For the in/out decision, criminal history moderated the effects of race: among offenders with less extensive criminal histories blacks were more likely to be incarcerated; among offenders with higher criminal histories this race effect disappeared. The race x offense severity interaction was not significant for the in/out decision. For the sentence length decision, offense severity moderated the effects of race: among offenders convicted of less serious crimes blacks received longer sentences than whites; among offenders convicted of crimes falling in the most serious offense categories the race effect became non-significant for Felony D offenses and transitioned to a relative reduction for blacks for the most serious Felony A, B, and C categories. The race x criminal history interaction was not significant for the length decision.

Conclusions

There is some support for the liberation hypothesis in this test from a non-guidelines jurisdiction. The findings suggest, however, that the decision to incarcerate and the sentence length decision may employ different processes in which the interactions between race and seriousness measures vary.

     

ADMINISTRATIVE FOXES IN EDUCATIONAL CHICKEN COOPS: An Examination of the Critique of Judicial Activism in School Desegregation Cases

Recent arguments against the use of the courts as a route for fashioning and implementing complex school desegregation plans are evaluated in light of the experiences of one district where the courts and federal government did not assume an active role. The political consequences of nonenforcement are explored as are the methods employed by school officials to maintain their control over educational policy-making. On the basis of this evidence, the author argues that an assertive judiciary is necessary, if desegregation policies and procedural reforms are to be successfully introduced.     

Building a nation: religion and values in the public schools of the USA,Australia, and South Africa

Although the systems of public schools differ among Australia, South Africa and the USA, all three countries recognize that religion plays a significant role in determining values. All three countries have written constitutions but only South Africa and the USA have a Bill of Rights that protects persons’ exercise of religious beliefs. In Australia, the place of religion in education has largely been shaped by state legislatures, administrative regulations and interpretations of the national constitution. In the USA, the long tradition of religious values being represented in public education has been severely restricted over the past 60 years, resulting in artificial judicial lines being drawn between private religious expression and government expression. However, even private expression can be prohibited if it interferes with the educational mission of a school. South Africa had a long tradition of Christian religious practices in government schools under apartheid. However, the post-apartheid 1996 Constitution and 1996 South African Schools Act still give these schools considerable latitude in investing religious values into the educational process. In Australia, values, religion and education have always been a preoccupation of those providing education, although the blurring of public and private education in Australia has resulted in a different direction for the role of religion than in the USA.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Comment on the recent Grokster judgment by the US Supreme Court

The Supreme Court handed down its decision in MGM v Groksteron 27 June 2005, reversing the decision of the lower courtsand holding that peer-to-peer software services may be heldliable for inducing copyright infringement.     

Caution in the Classroom: K-12 Teacher In-Class Speech,The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.     

Anatomy of Judicial Backlash: Southern Leaders,Massive Resistance,and the Supreme Court, 1954–1958

Exploiting a range of archival materials, we argue that state‐level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region's white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region's response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South's embrace of popular constitutionalism post‐Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.     

'Trade mark use' in Europe: revisiting Arsenal in the light of Opel and Picasso

Legal context: The European Court of Justice (ECJ) decision in the case ofArsenal Football Club v. Reed led to uncertainty regarding thepractical scope of a trade mark proprietor's property rights. Key points: The uncertainty resulted from a failure of the ECJ to addressclearly the issue of what constitutes infringing trade markuse. The ECJ ignored the question of the High Court as to whetheruse of a trade mark as an indication of origin is necessaryfor establishing infringement. They instead established an ambiguousstandard for what constitutes infringing trade mark use, suggestingthat only use that jeopardises the essential function of a trademark is an infringing use. This ambiguity has had problematicimplications for subsequent interpretations of trade mark law,particularly in the Court of Appeal in Arsenal and the Houseof Lords in R v Johnstone. Two relatively new ECJ cases may help clarify the issue. InOPEL, the ECJ suggested that infringing use of a trade markmust be use that is perceived by the relevant public as a designationof origin. The Picasso decision limits the effect of the Arsenaldecision on the relevance of confusion in non-sale situationsto the facts of Arsenal. In particular, it stresses the pointthat when assessing likelihood of confusion in the context ofan opposition to an application for registration the court shouldfocus on the perception of the relevant public at the pointof sale. Practical significance: The benefit of these two cases is that they create some clarityfor legal practitioners and the Courts when addressing the questionof what constitutes infringing trade mark use.     

The Islamic Veil and Freedom of Religion, the Rights to Education and Work: a Survey of Recent International and National Cases

The wearing of the female Islamic dress (generally referredto as the hijab), or any feature of this dress such as the headscarf(khimar), face veil (niqab) and the head-to-toe all envelopinggarment (jilbab) is a complex and multi-faceted issue that isoften raised in public debate in most European States in recentyears particularly in the education and employment areas. Thisarticle analyses the selected State practice and judicial decisionson the banning and similar restrictions to the wearing of theIslamic dress in State schools. Two issues are analysed: (i)whether the prohibition of female Muslim pupils or studentsfrom wearing the Islamic dress, or any feature of the Islamicdress, while at State schools amounts to an unjustifiable violationof the right to education and/or an unjustifiable violationof freedom to manifest one's religion or beliefs and (ii) ifa State (or a non-State actor) prohibits a female Muslim teacherfrom wearing the Islamic dress while at a State school, doesthis amount to a violation of the teacher's right to work and/orthe teacher's right to manifest freedom of religion or belief?     

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.     

King Cotton, Developing Countries and the 'Peace Clause': The WTO's US Cotton Subsidies Decision

Although the World Trade Organization (WTO) is a powerful vehiclefor promoting economic development, the Uruguay Round has beenperceived by developing country WTO members as an unequal bargain.Especially with respect to agriculture, the Uruguay Round yieldedonly limited concessions. In September 2003, Doha Round effortsstalled at Cancún when developing countries coalescedto oppose a proposal that insufficiently liberalized trade inagriculture. In March 2005, the Dispute Settlement Body adopteda panel decision upholding Brazil’s legal challenge ofUS subsidies to cotton producers. The US Cotton Subsidies decisionrepresents a dramatic victory for Brazil and other developingcountry WTO members. The timing of the decision, coincidingwith ongoing Doha Round agriculture negotiations, ensures thatit will influence any outcome of the Round. This article examinesthe US Cotton Subsidies decision, describes the subsidy programsat issue in the dispute, reviews applicable WTO rules, and outlinesthe major findings of the panel and Appellate Body. The articleconcludes that Brazil’s victory in US Cotton Subsidiesmay represent a broader shift within the WTO away from a systemdominated by the US and EC toward a system that increasinglyis influenced by emerging market economies.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Prefatory Note

In 1954, the Supreme Court of the United States ruled that segregatedschools were inherently unequal in the historic Brown v. Boardof Education decision. At that time, schools in the South weresegregated by law, and those in many other districts were defacto segregated by either official policy or housing patterns(Clotfelter, 2004). In addition     

The Condorcet Jury Theorem and the Expressive Function of Law: A Theory of Informative Law

We argue that legislation can generate compliance expressively,independently of deterrence. The Condorcet jury theorem impliesthat, in certain circumstances, the legislative process aggregatesthe private information of legislators to reach a decision superiorto that of any individual legislator. Citizens may update theirbeliefs about issues the legislation addresses even though individuallegislators are no better informed than individual citizens,and change their behavior in the direction of greater compliance.We first use a model with sincere voting and then consider strategicvoting, position-taking preferences, lobbying, and legislativeinstitutions. We use a public smoking ban for illustration,and propose an experimental test.     

Distrust of Government, the Vigilante Tradition, and Support for Capital Punishment

This study probes the interconnections among distrust of government, the historical context, and public support for the death penalty in the United States with survey data for area-identified samples of white and black respondents. Multilevel statistical analyses indicate contrary effects of government distrust on support for the death penalty for blacks and whites, fostering death penalty support among whites and diminishing it among blacks. In addition, we find that the presence of a "vigilante tradition," as indicated by a history of lynching, promotes death penalty support among whites but not blacks. Finally, contrary to Zimring's argument in The Contradictions of Capital Punishment , we find no evidence that vigilantism moderates the influence of government distrust on support for the death penalty, for either whites or blacks. Our analyses highlight the continuing influence of historical context as well as contemporary conditions in the formation of public attitudes toward criminal punishment, and they underscore the importance of attending to racial differences in the analysis of punitive attitudes.     

Can We Protect How We Do What We Do? A Consideration of Business Method Patents in Australia and Europe

In the long history of monopolies, business method patents area novel and recent edition. In the Digital Age, where time ismoney and speed is everything, innovative methods for undertakingbusiness are as important to a business as the products or servicesit provides to its clients. In recent years several reviews,conducted in both Australia and internationally,⁴ have questionedthe appropriateness of patenting business methods. This paperreviews the availability of business method patents in Australiain light of the 2006 decision of the Full Court of the FederalCourt in Grant v Commissioner of Patents,⁵ which confirmed theneed in Australia for a ‘useful product’ to issuefrom the working of a method (business or otherwise) in orderfor the method to be patentable. This paper will review argumentsboth criticising and defending business method patents and considerwhether business methods warrant special treatment.