Mixed Messages in Bottles: the European Union,Devolution, and the Future of the Constitution

An unprecedented eleven‐member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.     

Technological Change,Globalization and the Europeanization of Rights

In contrast to civil and political rights, and to economic and social rights, which have been constructed and guaranteed within the framework of the nation-state, the new rights that aim to respond to opportunities and risks arising from new information and communication technologies, biotechnologies or, more generally, technology-based industrial development, are emerging in a context characterized by the strengthening of trans-national forces and dynamics (so-called 'globalization') and the erosion of state sovereignty. The state's loss of power and autonomy to regulate economic and social activity, as well as to protect individual rights, has been accentuated in the European Community (EC) as a result of a process that to a certain degree anticipated contemporary global tendencies. The EC appears, therefore, as a privileged observatory of the possible impact of globalization on the contents of rights, whether 'classical' rights or new rights, such as the rights of access to information, new forms of intellectual property or rights to be consulted or to participate in decision-making about environmental risk. My main objective in this article is to analyze recent developments in the EC's legal framework of informational and environmental policies with a view to evaluate how opportunities for individual and collective action and welfare, made possible by new information and communication technologies or claimed by environmentally alert citizens, are being defined in the form of rights recognized to individuals or social groups.     

Defining Criminal-states

Governmental views on belligerent and near-belligerent states are discussed along with evolving US terms for these dangerous states. The post 9/11 security environment requires the recognition of a new form of dangerous state — the ‘Criminal-state’ a by-product of belligerent non-state entities and their networks at war with the nation-state form. Four criminal-state forms originating from Jihadi insurgency, state failure-lawless zones, external criminal takeover, and oligarchic regimes are then highlighted. Until the new security environment is openly recognized as merging with global criminality, and the fact that it contains highly adaptive ‘small, fast, and ruthless’ challengers to the nation-state form accepted, our ability to fully define the new threat of ‘Criminal-states’, highlighted in this essay, will be impeded.     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

Don’t Occupy This Movement: Thinking Law in Social Movements

Reflecting on the Occupy movement, particularly Occupy Wall Street, this article begins by addressing two major questions: how are social movements understood by legal academics; and how do social movements engage with law? Our aim is to present an alternative frame to understanding law and social movements. We draw on the work of Jean-Luc Nancy to explore law as both present and constituted in the coming together of persons in common which occurs in social movements. While the Occupy movement does engage with a form of law that is legislated and enacted through the government and legal system of a nation-state, the movement also forms and enacts law as part of its own processes. In this article we shift perspectives and attempt to think law within social movements. This involves a critical reading of some dominant approaches that explore social movements and law. Rather than situate our discussion within boundaries that seek to identify what is inside or outside a law and legal system that is determined and enforced by a nation-state (government and judicial system), our discussion of law involves a re-thinking of law. This law is part of a constant negotiation and it is involved in the dynamic processes of movements. Law involves establishing a limit and tracing this limit, but this limit is un-working itself as soon as it is constituted. The Occupy movements live law by existing not outside the law, but by rethinking the role and function of law in the movement and processes of community.     

Web Site Framing: Copyright Infringement through the Creation of an Unauthorized Derivative Work

This article argues that the framing of others' sites on the World Wide Web-the trapping of another's Web site within one's own site, sometimes known as "in-line" linking-creates a derivative work and is, thus, copyright infringement, when the derivative work was created without permission of the copyright holder. Such linking alters the framed Web site, modifies it, re-packages it in a way its author did not intend and transforms it, misrepresenting the author's work in the process, either by attributing the work to someone else or attributing a creation to the author that the author did not produce.     

Friendship,Courting, and Engagement: Pre-electoral Coalition Dynamics in Action

The literature on pre-electoral coalitions (PECs) still relies heavily on comparative statics to gauge whether a PEC is likely to form and/or its effects on government formation. However, less is known about the behavioural dynamics of PECs. The dynamics of the recent 2009 PEC between the Socialist People's Party and the Social Democrats in Denmark are assessed. Elaborating on the signalling hypothesis, it is argued that coalition members over time must show their ability to vote together in parliament in order to establish a credible commitment. Empirical support is found for this take on the signalling thesis. It was also found that the distance between the parties narrows before the formulation of the PEC, and distinct phases in the process are pointed to, which the authors coin ‘friendship’, ‘courting’, and ‘engagement’. Finally, alternative explanations are assessed and the question of which party of the PEC would have to change voting patterns in the inter-party coordination process in order to become 'office-fit' is addressed. It is concluded that PECs have a systematic effect on the members' parliamentary voting behaviour and that they serve as a preparatory signalling device for opposition parties with office ambitions.     

Misconceiving ‘seasons’ in global food systems: The case of the EU Seasonal Workers Directive

This article discusses the EU Seasonal Workers Directive alongside case study data of seasonal agricultural work in Spain. The conceptual contribution is to critically consider ‘seasonality’ and the related assumptions around temporary labour migration for agricultural work. This consideration informs an analysis of the Directive's policy approach alongside its three global objectives. It is argued that this Directive is likely to fail to meet all three of these objectives; the assumed timeframe for labour demands does not correspond with unmet seasonal challenges; the lack of options for undocumented workers already in the EU may compound their marginalisation; the policy approach of circular migration and limited worker protections does not do enough to prevent new seasonal workers from falling into situations of vulnerability and undocumented status.     

Protecting the Internet with international law

The Internet remains the odd child of international law. While forever more universal law venues such as conferences, edited volumes or research projects consider “the Internet” a peculiar, interesting aspect of its well-recognized disciplines, international scholarship fails to address the global network as a whole, stalling the application of the fully developed and well-suited international law apparatus to the global community's biggest contemporary challenge. “Internet governance” is still perceived by legal scholars as construed to international relations and, at best, a potential ground for soft law in a distant future. That is not the case: Internet governance, with all its challenges, has been shaping international law for almost two decades. The latest unveilings of the ways in which the Internet impacts global policies and laws caught the public eye with the 2018 Cambridge Analytica scandal and, previously, with the 2013 Snowden revelations, yet as surprising as they might have been to the average user, they are direct results of network's architecture and its governance model. This paper looks at the evolving concept of “Internet's public core” as an opportunity to bridge this dogmatic gap. We identify the scope and meaning of “Internet's core” and assess its legitimacy within existing international normative frameworks. We argue that the technical components crucial to the flawless operation of the global network, such as the Domain Name System and Internet's backbone networks, can be effectively protected with international law.     

Russian and Soviet forensic psychiatry: Troubled and troubling

Russian forensic psychiatry is defined by its troubled and troubling relationship to an unstable state, a state that was not a continuous entity during the modern era. From the mid-nineteenth century, Russia as a nation-state struggled to reform, collapsed, re-constituted itself in a bloody civil war, metastasized into a violent “totalitarian” regime, reformed and stagnated under “mature socialism” and then embraced capitalism and “managed democracy” at the end of the twentieth century. These upheavals had indelible effects on policing and the administration of justice, and on psychiatry's relationship with them. In Russia, physicians specializing in medicine of the mind had to cope with rapid and radical changes of legal and institutional forms, and sometimes, of the state itself. Despite this challenging environment, psychiatrists showed themselves to be active professionals seeking to guide the transformations that inevitably touched their work. In the second half of the nineteenth century debates about the role of psychiatry in criminal justice took place against a backdrop of increasingly alarming terrorist activity, and call for revolution. While German influence, with its preference for hereditarianism, was strong, Russian psychiatry was inclined toward social and environmental explanations of crime. When revolution came in 1917, the new communist regime quickly institutionalized forensic psychiatry. In the aftermath of revolution, the institutionalization of forensic psychiatry “advanced” with each turn of the state's transformation, with profound consequences for practitioners' independence and ethical probity. The abuses of Soviet psychiatry under Stalin and more intensively after his death in the 1960s–80s remain under-researched and key archives are still classified. The return to democracy since the late 1980s has seen mixed results for fresh attempts to reform both the justice system and forensic psychiatric practice.     

Transitional Shortcuts to Justice and National Identity

National legal systems undergo profound changes when they are confronted with undemocratic power seizure. The same occurs when they experience a transition (back) to democracy. Thus far, these two types of transition have been studied in relative isolation. Nevertheless, it seems that both undemocratic usurpers and democratizing regimes affect the role of fundamental rule‐of‐law principles in similar ways. This article compares both types of transition and suggests that pragmatism and national identity are the driving forces behind similar legal mechanisms, affecting legal principles, in those two forms of transition. Drawing on Carl Schmitt's idea of the state of exception and Ruti Teitel's work on transitional justice, this article shows that both kinds of transition share the same fundamental legal structure.     

National Solidarity,Global Impartiality,and the Performance of Philosophical Theory. The Example of Migration Policy

This paper explores the issue of whether an international system of nation-states can be defended from a global perspective of impartiality. At present, it seems as if the nation-state were the only suitable institutional location for the realization of effective systems of social justice. Provided that national politics is indeed disposed to promote the freedom and well-being of its citizens, a decentralized system of nation-states is likely to produce beneficial effects. Experience, however, teaches that national politics has in many instances had decidedly negative effects. For that reason, the existing system of nation-states cannot be defended from a global point of view. Hence, the question turns on whether a system of nation-states could conceivably find the support of rational persons if it incorporated substantive restrictions on national politics. This paper discusses the liberty to migrate as one of the many options potentially available for the correction of the existing international regime. As the closer inspection of the underlying philosophical question reveals, the problem can only be resolved with reference to a normatively relevant understanding of the kind of persons we take ourselves to be. From the conclusion that the freedom to migrate is to be understood as a fundamental liberty, the discussion then turns to the legitimate limitations that might be imposed by national immigration policies. It is argued that—in order to accommodate what is demanded by both global impartiality and national solidarity—open admission policies must not in effect place at a disadvantage those who are already relatively worse off under a present distribution, for this would violate basic conditions for the development and confirmation of socially acquired self-esteem     

Scaling Residential Retrofits in New York City: Financing,Standardization, and Streamlining

Energy efficiency is a multiple-win opportunity for reducing global warming pollution, providing energy and cost savings, improving local environmental quality, and increasing the resilience of our built environment. In 2030, 85 percent of New York City's building portfolio will be comprised of buildings that exist today. Scaling up building retrofits and creating the policy environment to grow the building retrofits industry in New York City is critical to achieving the city's economic, local and global environmental, public health, and resilience goals. This article proposes scaling up the city's innovative residential energy efficiency efforts through a home efficiency Web portal, accelerating and stitching innovative programs together as they grow, leveraging post-Sandy recovery funding for building performance improvements, and moving stepwise towards certain mandates for energy performance among the city's smaller private buildings.     

‘Omnus et Singulatim’: Establishing the Relationship Between Transitional Justice and Neoliberalism

First developed by human rights lawyers and activists, transitional justice emerged from the so-called third wave of democratisations in Latin America. Over the last 30 years, transitional justice has risen to become a ‘global project’ of global governance. Locating the emergence of transitional justice within the global rise of neoliberalism, this article shows that transitional justice serves an important function in regards to the particularly neoliberal contours of many transitions. Understanding this relation, the article argues, is best served with recourse to what Wendy Brown describes as neoliberalism’s practice of omnus et singulatim, a double process through which ‘communities’ are gathered together as stakeholders to take part in economic activities whilst simultaneously being individualised as ‘responsibilised’ and self-sufficient entrepreneurial units. Taking this concept, I argue that transitional justice also undertakes a process of omnus et singulatim that usefully prefigures and supports processes of neoliberalisation during ‘transition’. Transitional justice, it concludes, does the necessary work of bringing conflictual, traumatised, societies back together, whilst doing so on terms that do not threaten but instead prefigure the individualising demands made upon subjects at the sites of neoliberal transition.     

权利观念的中国化——从民族国家选择到社区伦理挑战

中国在法治现代化过程中,始终面临的基本问题是,外来权利观念与在地经验之间的关系。所谓在地经验,包括民族国家的认识和社会民众的认同两个层面。这也就意味着,权利观念进入中国要经历双重语境化的过程。一方面,引入外来权利观念是中国建立强大民族国家的需要,并且权利观念会随着国家治理策略的改变而改变;另一方面,权利观念一旦被确立为国家意识形态,并强力推行进入社会生活,有可能会加速既有社会结构的解体。由于新的社会结构并不能很快形成,反而使得社会处于不稳定状态。对于转型社会而言,以个体权利为基础,同时强调公民社会责任的共同体观念的建立就显得十分必要。     

Explaining China's approach to investor-state dispute settlement reform: A contextual perspective

China's approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China's submission to the UNITRAL Working Group III and situates China's approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China's open, flexible, and evolving approach to ISDS reform could be better understood by a contextual evaluation of the pertinent factors which have contributed to its formation. Moreover, this paper explains why China did not sign up to the EU's investment court system (ICS) proposal in the EU-China Comprehensive Agreement on Investment (CAI). Lastly, the paper argues that China should reconsider its attitude towards the ICS in the CAI context and that the EU's recent suggestion that the envisaged multilateral investment court may adopt an ‘open architecture’ is likely to enhance its appeal to China.     

DI‐LE‐CA approach to teaching European law

The Queensland University of Technology badges itself as “a university for the real world”. For the last decade the Law Faculty has aimed to provide its students with a ‘real world’ degree, that is, a practical law degree. This has seen skills such as research, advocacy and negotiation incorporated into the undergraduate degree under a university Teaching &; Learning grant, a project that gained international recognition and praise. In 2007–2008 the Law Faculty undertook another curriculum review of its undergraduate law degree. As a result of the two year review, QUT's undergraduate law degree has fewer core units, a focus on first year student transition, scaffolding of law graduate capabilities throughout the degree, work integrated learning and transition to the workplace. The revised degree commenced implementation in 2009. This paper focuses on the “real world” approach to the degree achieved through the first year programme, embedding and scaffolding law graduate capabilities through authentic and valid assessment and work integrated learning.     

Women's agency in Australia's first fertility transition: a debate revisited

The place of women's agency in the fertility transition of the late nineteenth/early twentieth century is a contested one. Some argue that the transition was achieved mainly through male methods of contraception. Others, including many arguing from an Australian perspective, contend that women's agency in fertility decline was significant. In this article, the authors revisit the issue of women's agency in Australia. Drawing on a range of archival sources and scholarship, they seek to demonstrate that women in Australia in the last quarter of the nineteenth century had access to contraception, albeit limited, and, where that failed, to abortion. The authors argue that the changing political and educational climate, which saw women gaining the vote in 1894 in South Australia and admission to secondary and higher education and paid work, provided the setting for women's changing status. Their increasing agency – an agency many women worked to secure – encouraged women to challenge many traditional practices.     

Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.     

Democratic consolidation and parliamentary reform in Russia, 1990–93

It is a commonly held view that the Russian parliament, created in the late period of perestroika, possessed powers and structures that were incongruous with the process of democratic consolidation.’ It is a mistake, however, to suggest that parliamentary deputies failed to appreciate the problems that hampered both the parliament's work and its relationship with executive organs. Many deputies in both the All Union and Russian assemblies were committed to the creation of a ‘professional parliament’, and numerous reforms were put forward to resolve what some deputies called the ‘crisis of parliamentarism’ in Russia. These reforms, proposed by democrats and conservatives alike, raise new questions about the aims and objectives of deputies in Russia's first post‐Soviet parliament. What did deputies understand by the notion of a ‘professional parliament'? In what form did deputies envisage the new system of government? Were the many, often competing, proposals for parliamentary reform conducive to the achievement of democratic consolidation in Russia? This article will attempt to answer these questions by examining the proposals for parliamentary reform in the Russian parliament between 1990 and 1993.