Privacy and Search Engines: Forgetting or Contextualizing?

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice's judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman's idea of ‘information games’ and Nissenbaum's theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court's binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.     

O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education

In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.     

Socio‐legal Studies in Aotearoa/New Zealand

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.     

Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal Approach

Over the years, in the case‐law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a ‘moderate approach’ in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more ‘liberal approach’ in cases such as Carpenter (2002) and Jia (2007). Under the Court's ‘moderate approach’, family reunification rights in the context of the Community's internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the economic fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of those freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court's ‘liberal approach’, in order for family reunification rights to be bestowed by EC law, it suffices that the situation involves the exercise of one of the market freedoms and that the claimants have a familial link which is covered by Community law; in other words, there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community's aim of establishing an internal market. The recent judgments of the ECJ in Eind and Metock (and its order in Sahin) appear to have decidedly moved the pendulum towards the ‘liberal approach’ side. In this article, it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly functioning market but also a polity, the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the ‘liberal approach’ seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its ‘moderate approach’ and which appear to be an anomaly in a citizens' Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court's ‘moderate approach’) as mere factors of production; and b) the emergence of reverse discrimination. The article will conclude with an explanation of why the adoption of the Court's liberal approach does not appear to be a proper solution to these problems.     

Fraud by Abuse of Position and Unlicensed Gangmasters

This article analyses the Court of Appeal's interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court's welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court's reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession

Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.     

The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia

This article critically examines the degree to which higher‐animal welfare label claims change animal welfare regulation and governance within intense meat‐chicken ('broiler') production in Australia. It argues that ethical labelling claims on food and other products can be seen as a ‘governance space’ in which various government, industry and civil society actors compete and collaborate for regulatory impact. It concludes that ethical labelling can act as a pathway for re‐embedding social concerns in the market, but only when it prompts changes that become enshrined in standard practice and possibly the law itself. Moreover, the changes wrought by ethical labelling are small and incremental. Nevertheless, labelling may create ongoing productive tension and ‘overflow’ that challenges the market to listen to and accommodate actors (including animals) on the margins to create ongoing incremental changes.     

The policy origins of the European economic constitution

This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty (general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this, the first archive‐based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demonstrates that there was a strong continuity in the investment by a number of key actors in focusing on Article 30 to create the single market from the mid‐1960s. These civil servants and lawyers provided the backbone for the Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need for legislative harmonisation and making it a cornerstone of the Single European Act of 1986. The article therefore analyses one of the key moments in the transformation of European law.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

National Constitutional Jurisprudence in a Post‐National Europe: The ESM Ruling of the German Federal Constitutional Court and the Disavowal of Conflict

In its pending decision on the constitutionality of the European Stability Mechanism and Fiscal Compact, the German Federal Constitutional Court (FCC) has recently ruled on several applications for temporary injunctions against the transposition of these instruments. The problem of democratic self‐determination under the constraints of monetary integration has been a main concern in the ruling. Yet, the democracy‐safeguards the FCC has prescribed are parochial in not considering their impact on other EU Member States, and the Court's view of autonomy is skewed towards the issue of spending. Both concepts are at odds with the current level of transnational interdependence, which the FCC as relay to ‘integration by stealth’ has facilitated during two decades of EU‐jurisprudence. Constitutional jurisdiction should acknowledge its role in this state of affairs and fortify its effort in building judicial networks of deliberative exchange to overcome outworn parochialisms.     

The Quest for a Satisfactory Definition of Terrorism: R v Gul

The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide‐raging implications for the UK's counter‐terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root‐and‐branch’ review of counter‐terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.     

A Mediator on the World Stage?—How the EU's Commitment in Foreign Affairs is Portrayed by New Zealand and Australian Media

Abstract: ‘European identity’ is as much a contested concept as is the role of the European Union in foreign affairs. This article combines the two concepts and introduces a third variable, ‘the Other’, in order to address the following questions: How do non‐Europeans perceive the EU on the world stage? Is a tentative identity as a mediator in foreign affairs conveyed in the EU's conduct of foreign policy? Analysing 10 newspapers, 4 television bulletins, and 830 public surveys from Australia and New Zealand in the first half of 2004, this article argues that the EU's efforts to further democracy and peace are often marginalised in Australian and New Zealand perceptions. Nevertheless, subtle traces of perceptions of the EU as a potent global actor promoting human rights and environmental sustainability and challenging unilateral US policy courses were detected.     

Marginalized Mothers,Reproductive Autonomy,and ‘Repeat Losses To Care’

Over 70,000 children are ‘looked after’ by local authorities in England and Wales. Emerging research suggests that a significant proportion of their birth parents have either already lost a child to permanent adoption or will go on to lose others. These ‘repeat loss’ cases raise difficult questions about marginalized mothers and their reproductive autonomy. This article considers past and present tactics used by the state in its attempts to limit that autonomy, including institutionalization, sterilization, long‐acting contraception, and permanent adoption. It argues that the gradual democratization of intimate citizenship over the past century, defined as a person's ability to choose and direct their intimate relationships, has obliged the contemporary state to develop new tactics which aim to build personal capacity and to balance enhanced child protection with enhanced reproductive autonomy.     

Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.     

Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?

In Animal Defenders International v United Kingdom a majority of the Grand Chamber of the European Court of Human Rights held that the UK's statutory broadcasting ban on political advertisements under the Communications Act 2003 did not breach the right to freedom of expression under Article 10 of the European Convention on Human Rights. The judgment departs from the Court's established case law and, it is argued, raises several issues of concern both with regard to freedom of expression, and for human rights adjudication more generally. In particular, the Court's use of a doctrine of ‘general measures’ led it to place a great deal of reliance on the quality and quantity of legislative debate that preceded the UK ban, rather than its actual impact upon the applicant.     

Controlling Consensual Sex Among Prisoners

Despite recent legal advances for LGBT citizens, including the Supreme Court's recognition of a constitutional right to engage in private, consensual, same‐sex sex, prisons continue to regulate sex in much the same way they have been doing since the nineteenth century. Nationwide, prisons bar consensual sex among prisoners, and those who violate this policy face severe punishment, including administrative segregation. Interviews with prison officials from twenty‐three states uncover beliefs linking consensual sex with violence that places the overall security of the prison at risk. While supporting LGBT rights and the decriminalization of same‐sex sex in society, officials insist that prisons are not suited for similar change. This article explains why prison officials have been so committed to this policy and argues that the time has come to reconsider prison regulation of consensual sex.