On Moving the Table: Reflections on an Author-Meets-Reader Session

Through a commentary on the enriching experience of receiving feedback through the Brewing Legal Times author-meets-reader session in February 2018, this piece reflects on the intellectual generosity and scholarly labour that makes such sessions an important form of academic social reproduction.     

Doctrine and Decision: Navigating Labour's New Constitutional Position in the Lords

The 2015–17 Parliament was the first time in history that the Conservatives were in government with no easily assembled majority in the House of Lords. This has fundamentally altered the role that Labour is able to play in the Lords and, conversely, that peers are able to play in the Labour party. Yet the political significance of this situation has not yet been fully appreciated by a party which remains culturally antagonistic and constitutionally wary of the Lords. In this paper, we draw on interviews with Labour peers, particularly the late Baroness Hollis of Heigham, who have been able to use the essentially conservative powers of the Lords for social democratic ends. We suggest that the Labour party needs to incorporate the second chamber into both its practical and symbolic politics, and to find ways to use this new source of constitutional power without accommodating to it.     

Sex Determination Using the Second Cervical Vertebra—A Test of the Method*

Abstract: Sex is one of the critical questions addressed when unidentified skeletal remains are discovered in forensic or archeological contexts. Continuous testing and re‐evaluation of existing techniques is essential to improve accuracy and precision. The Wescott (J Forensic Sci 2000; 45 (2):462–6) method of sex determination from dimensions of the second cervical vertebra was blind‐tested on 153 adult individuals from the Spitalfields documented collection of human skeletal remains held at the Natural History Museum, London. Significant sex differences were determined for all dimensions measured (independent two‐sample t‐test, p < 0.05–0.001). The discriminant functions developed by Wescott were shown to have an overall accuracy of classification of 76.99%. Using stepwise discriminant analysis, a discriminant function based on the Spitalfields data correctly classified sex in 83.3% of individuals and was able to classify males and females with equal accuracy. Additional discriminant functions are presented for use in instances where preservation of the second cervical vertebra is poor.     

The Problem of Emergency in the American Supreme Court

Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt and Agamben in order to come to a better understanding of this important set of cases.     

re-reading horror stories: maternity,disability and narrative in Doris Lessing's <Emphasis Type="Italic">The Fifth Child</Emphasis>

The central issues raised in much of feminist literary theory's early scholarship remain prescient: how does narrative engage with the social‐historical? In what ways does it codify existing structures? How does it resist them? Whose stories are not being told, or read? In this article I use Doris Lessing's novel The Fifth Child (1988) as a text with which to begin to address the above questions by reading with attention to the mother story but also the ‘other’ stories operating both within and outside of the novel; in particular I am concerned with the convergence of maternity, disability and narrative. The novel's co-implication of sexual difference and corporeal difference reveals the ways in which the mother's story is both made possible and authorized by the disabled body of her child, and by his inability to tell his own story. Yet, if The Fifth Child is a horror story that uses the disabled child's body as its ground, it is also about the horror of maternity, in its conception and attendant choices. In this fictional story as well as in the social‐historical narrative circulating at the time of its publication in the late 1980s, both child and mother are indicted in their otherness and it is ultimately impossible to separate one from the other.     

… and still we are left wanting: Malta's White Paper on digital rights

CLSR welcomes occasional comment pieces on issues of current importance in the law and technology field from different jurisdictions. In this instance the Government of Malta published a White Paper in October 2012 for public consultation, proposing the introduction of the following four so-called “digital rights” in the Constitution of Malta: (1) the right to Internet access; (2) the right to informational access; (3) the right to informational freedom and (4) the right to digital informational self-determination. The author believes that the proposal is indeed a step in the right direction but lacks punch where it matters most and does not go far enough.     

Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts

Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to "take the Constitution away from the courts" in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation-based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.     

How Can Subnational Governments Deliver Their Policy Objectives in the Age of Austerity? Reshaping Homelessness Policy in Wales

This article explores how a devolved government in a small country, faced with external constraints beyond its immediate control, can deploy policy resources to shape a distinctive approach to public services. We analyse recent homelessness policy in Wales using the NATO (Nodality, Authority, Treasure, Organisation) typology of tools of government proposed by Hood and Margetts, and show how this can be applied usefully to understand the choices that governments must make in conducting relationships with other institutions. We conclude that a combination of Nodality and Authority provide powerful resources for a subnational government which has only limited formal powers and fiscal autonomy.