Kenya: AIDS-law sensitization results in schooling for orphans

In a landmark victory for children living with HIV/AIDS, in January 2004 the Kenyan High Court approved an agreement between the government and the Nyumbani Children's Home whereby the Ministry of Education will admit HIV-positive children to government schools. Prior to the agreement, government practice was to refuse admission of children from the Nyumbani Children's Home, Kenya's oldest and largest AIDS orphanage, on grounds such as that the school was full to capacity or that the applicant had failed to produce a birth certificate. This was in spite of the fact that Kenya's schools are already overcrowded and that births are often unregistered.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

Medicare and Medicaid programs, freedom of information (FOI) guidelines--HCFA. Notice

In accordance with the settlement agreement reached in the case of Home Health Line v. HCFA, District Court of District of Columbia, Civil Action (D.D.C., C.A.) No. 90-1006 LFO, HCFA is publishing in the Federal Register a notice describing and clarifying HCFA's guidelines concerning expedited processing of Freedom of Information (FOI) requests.     

Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

This note discusses the House of Lords' decision in RB (Algeria) (FC) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department that the real risk of third‐party foreign torture evidence does not meet the required standard of unfairness so as to prevent the deportation of suspected terrorists under Article 6 ECHR. It considers three key issues that were raised by this case: Parliament has deliberately restricted the right of appeal from SIAC to the Court of Appeal on questions of fact; the procedure of using closed material by SIAC in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by SIAC that diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and, therefore, are beyond review by the appellate courts.     

Contesting Religious Authoriality: The Immanuel “Beis-Yaakov” School Segregation Case

This paper will focus on two textual articulations that emerged in the Immanuel “Beis-Yaakov” school segregation case. The first is a declaration of the Admor from Slonim that was published when the ultra-Orthodox fathers who refused to send their daughters to an integrated school were imprisoned. The second is a letter to the Supreme Court that was written by an Ashkenazi mother whose daughter attended the “Beis Yaakov” school. A semiotic reading of the articulations reveals several opposing characteristics. The Admor’s audience is determined by his choices of medium and rhetoric, which guarantee hegemonic reading, corresponding with the textual code of his interpretive community. The letter, on the other hand, represents an attempt to break through communal borders, and therefore its writer cannot expect hegemonic reading. Yet, she makes a considerable effort to employ signifiers denoting her ultra-Orthodox affiliation. In light of the hindrances that usually prevent ultra-Orthodox women from contesting the authority of the community, the letter presents a rare feminine voice, which is vigorous enough to attempt subverting under the authoriality of the Admor, and might have a long run affect on the quest for equality.     

Congressional Attacks on the Supreme Court: A Mechanism to Maintain,Build, and Consolidate

Reexamination and reinterpretation of the “mature” (1955–1984) New Deal era of congressional attacks on the Supreme Court reveals a new hypothesis: that Court‐curbing efforts played a previously unrecognized role in party system development. Court rulings that create inter‐ and intraparty tension provide opportunities for various actors to attack the Court in an effort to solidify their faction's standing within national coalitional politics. Congressional attackers can use Court‐curbing resolutions and amendments in efforts to help them maintain coalitional cohesion, build a new majority, or consolidate previous victories. Thus, we might see legislative‐judicial relations as an unrecognized “site” of political development, where coalitional change is opposed and wrought.     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

The online defamation maze: are we finding a way out?

The main purpose of this paper is to examine the efficacy of the first decision that explored online defamation (as opposed to offline defamation) delivered by the Supreme Court of Japan. A discussion of the future implications of the case is then undertaken. The paper supports the First Instance (the Tokyo District Court) decision and its approach, and argues that such an approach might have provided greater implications for the future. The author also argues that the Tokyo District Court seems to have taken a more reflective view on the fluidity of online defamation and the nature of the online environment, and shows a degree of willingness to accept and incorporate such a nature. The author concludes that the Tokyo District Court's approach, although it could be seen as rather radical and extreme, seems to be more persuasive than that of the Supreme Court. It also submits that the court might have brought a more balanced and healthy outcome for the beneficiaries, including not only the claimants, the defendants, but also society as a whole. It is the case that innocent internet users can potentially be both the passive and active recipients of the information (i.e. comments posted on webpage). Before a detailed analysis and examination of the case is undertaken, a brief outline of how Japanese law and its jurisprudence have dealt with the traditional form of defamation (i.e. offline defamation) is provided as background.     

The Development of EU Case‐Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I'm Sixty‐Four’

This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies.     

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also—to some extent—by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.     

Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation

Amicus curiae participation is a staple of interest group activity in the U.S. Supreme Court. While a reasonably large body of scholarship has accumulated regarding the effectiveness of this method of participation, little attention has been paid to examining the reasons why amicus participation might increase litigation success. In this article, I test two separate, but not mutually exclusive, theories as to why amicus briefs may be effective. The first, the affected groups hypothesis, suggests amicus briefs are influential because they signal to the Court how many groups and individuals will be potentially affected by the decision. The second, the information hypothesis, proposes that amicus briefs are effective because they provide the Court with added information that buttresses the arguments of the direct parties. When subjected to empirical verification, the results indicate that not only does amicus participation increase litigation success, but also that this influence may be best explained by the information hypothesis.     

Abela and Others v Baadarani: The Politics Within the Supreme Court

The Supreme Court deals with many political cases, where policies are at stake, while on the other hand there is the politics within the Court which can also play an important role. It is difficult to judge the current system without sound empirical and theoretical studies, so one cannot confidently assess the effectiveness of the paper appeals in the American System in the light of the long history of the UK system, of different career paths of advocates in these two countries and of different routes of appointment for judges in both jurisdictions. Nevertheless, any interviews that were conducted with senior judges in the UK were conducted a long time ago and might not be applicable to the current realities. It is true that the British system is open to moderation—the elimination of the House of Lords and its replacement with the Supreme Court is the best example—but maybe more changes are needed. It is paramount that greater diversity in the profession brings fresh perspectives. This is evident in electing practitioners with different career paths, such as Justice Kennedy and Lord Sumption. The president of the Supreme Court, Lord Neuberger, even suggested advertising the next position in the Supreme Court to be on a part time basis, to enable the election of an academic. As stated in the introduction, since Abela and others v Baadarani is a case with important principles at stake, is there a space for political disagreement?     

The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making

Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The article concludes by comparing the interpretive-structural theory with the "new institutionalism" that is emerging in political science.     

Constitutional protection of confessions made by mentally retarded defendants

Criminal confessions made in response to custodial questioning are excluded from evidence unless a defendant voluntarily, knowingly and intelligently waived his Miranda rights. In Connelly, the Supreme Court erred by holding that, absent explicit police coercion, a mentally ill individual's waiver is valid. The Court failed to consider the defendant's subjective impairments that might invalidate his waiver. By contrast, the Patterson Court suggested that a defendant's right to counsel may attach at an early stage in a criminal proceeding if the defendant has a significant need for counsel. This Note addresses the special needs of a mentally retarded person in the criminal justice system. The Note argues that mentally retarded suspects require careful explanation of Miranda rights in order to understand them. The intellectual and adaptive deficiencies which characterize mental retardation also necessitate an inquiry into a valid waiver that accounts for these disabilities. Furthermore, the special needs of the mentally retarded mandate that the right to counsel attach as early as the precustodial stage of an investigation. Early access to counsel most effectively assures that a mentally retarded person's waiver of constitutional rights is voluntary, knowing and intelligent.     

Time and Transcendence: Narrating Higher Authority at the Caribbean Court of Justice

This article examines the relationship between time and authority in courts of law. Newness, in particular, poses an obstacle to a court's efforts to establish authority because it tethers the institution to a timeline in which the human origins of the court and the political controversies preceding it are easily recalled. Moreover, the abbreviated timeline necessarily limits the body of legal authority (namely, the number of judgments) that could have been produced. This article asks how a court might establish its authority when faced with such problematic newness. Based on extensive ethnographic research at the Caribbean Court of Justice, I demonstrate how the staff and judges at this relatively young tribunal work to create a narrative in which the Court transcends its own troublesome timeline. They do this by attempting to construct a time‐transcendent principle of Caribbeanness and proffering the Court as a manifestation of this higher authority. The Court's narrative of its timelessness, however, is regularly challenged by far more familiar tales of its becoming, suggesting that in this court, as in all courts, the work of building and maintaining authority is ongoing.     

Fetal Alcohol Spectrum–The Hidden Epidemic in Our Courts

This article discusses the basics of Fetal Alcohol Syndrome and Fetal Alcohol Effects (FAS/E): the history, nature, prevalence, causes, and effects of prenatal exposure to alcohol. Some of the unique features of FAS/E are explored, particularly those that make it so hard to spot and those that predispose people to nonproductive or criminal activity. The presentation of FAS/E in Juvenile Court is discussed and put in the context of the multiplicity of factors pertaining to delinquency; finally, innovative interventions, approaches and resources are laid out. Issues surrounding FAS/E as they appear in Family Court are then explored, with emphasis on the intergenerational transmission of this array of conditions and how we might interrupt such transmission.     

作为一个偶然地区性事件的正当程序革命

沃伦1953年被任命为美国联邦最高法院大法官是一个普通的政治任命。正当程序革命是一个意外进入的时代。沃伦法院成员都是普通公民,而绝非圣贤。在美国深深的卷入越战的大背景下,美国国内兴起了浩大的民权运动。沃伦法院在刑事领域的正当程序革命和当时的时势互相借力,将六十年代演化为一个革命时代。中国刑事诉讼改革以正当程序革命为精神激励,圣化沃伦革命,意在矫枉过正,但可能带来逆向的反弹。     

HIV-positive person who did not disclose status convicted of attempted aggravated assault

On 18 September 2003, the Supreme Court of Canada released its unanimous decision in Williams. This is the first case on the issue of criminal liability for HIV exposure decided by the court since its 1998 decision in the Cuerrier case. Williams raised the issue of whether persons with HIV who have unprotected sexual intercourse without disclosing their status to a sexual partner who might already have been infected with the virus, can be convicted of aggravated assault or attempted aggravated assault. The Supreme Court decided that only a charge of attempted aggravated assault could stand. The decision is also significant because the Supreme Court's comments on two ancillary issues may lead to a significant extension of the criminal law related to HIV transmission or exposure.     

Regulating government (’s share): the fifty-percent rule of the federal constitutional court in Germany

Some numbers in the political sphere seem to be chosen rather arbitrarily. One example might be the rule set out by the Second Senate of the German Federal Constitutional Court in 1995 that the overall tax load on assets must be limited to 50% of the yield on those assets. This rule was understood by many as a general principle for taxation. The article first sketches the socio-political climate under which the rule originated: a rise of neo-liberal thought met with the inability of the political institutions to reform the German welfare state with its ever-growing expenses. The Constitutional Court’s intervention is interpreted as a reaction to this stagnation in politics. An analysis from the perspective of Constitutional Law, however, reveals that the 50% rule cannot be convincingly based on the German Basic Law, and instead must be seen as a political move of the Court. But this move did not follow an economic rationality, either; for an optimal government’s share can only be determined in relation to the economic performance of a country and not by fixing it generally at a maximum of 50% of GDP. The demise of the 50% rule already began four years later. In 2006, finally, the Senate moved away from the individual rights-based approach of 1995 to a more general assessment, taking also into account an increasingly globalized tax competition. The reason for this clear-cut change in the Court’s jurisprudence can be found in a change of the socio-political and institutional parameters, thus witnessing to the effect of the political climate on court decisions. The analysis also shows that the rule was created and abandoned only on the basis of an “introverted” legal discussion, economic arguments hardly playing any role in the process. The new line of the Senate, however, might guarantee for a better integration of economic science into tax policy by exchanging fixed limits for a “discursive” model, demanding from the tax legislator better reasons for higher taxes.