Prosecuting in paradise – race,politics and the rule of law in Fiji

This article looks at the violent coup in Fiji in 2000 led by George Speight in which the multiracial Government of Mahendra Chaudhary was overthrown. The article gives an insider's account of a subsequent criminal trial of some senior political figures who had supported Speight, including the Vice-President of Fiji. They were charged with taking treasonous oaths of office to serve in a rebel Government under Speight at a time when the legitimate Head of State, President Ratu Sir Kamasisi Mara, was struggling to prevent the nation from descending into total chaos and anarchy. The article considers how the trial had important ramifications for the rule of law in this developing south Pacific nation.     

Litigation Public Relations: The Lawyers' Duty to Balance News Coverage of Their Clients

As the 20th century began its final decade, litigation public relations was more rigorously condemned than condoned. By the end of the decade, the proliferation of the practice and the failure of the bar and bench to forbid it had made the criticism virtually moot. This article considers whether there is a basis for making the right to practice litigation public relations an obligation to do so. The article concludes that the right properly belongs to clients and not their attorneys, and finds a basis in contract and malpractice law for requiring attorneys to tend to their clients' interests in the court of public opinion as zealously as they do in courts of law.     

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.     

The Use of the Biblical Oath and Its Development

The use of the oath in Jewish law reflects the religious nature of this system of law: in case a litigant cannot receive justice from the human judges s/he is entitled to call on God by swearing an oath. I begin this survey of the use of oaths in Jewish law with a discussion of the nature of “swearing an oath” based on biblical stories and biblical rules that regulate the use of oaths outside court. I then focus on the use of the oath in court; I survey the domain of circumstances in which an oath is accepted by Jewish law as evidence according to the Bible, the Mishna, Gemara, and codifications. Finally, I exemplify how the oath is used in practice in the 20th century by one case from Rabbi Saul Ibn Dannan’s responsa book “Hagam Shaul”.     

From Programmatic Reform to Social Science Research: The National Tax Association and the Promise and Perils of Disciplinary Encounters

This article uses the history of the National Tax Association (NTA), the leading twentieth‐century organization of tax professionals, to strengthen our empirical understanding of the disciplinary encounter between law and the social sciences. Building on existing sociolegal scholarship, this article explores how the NTA embodied tax law's ambivalent historical interaction with public economics. Since its founding in 1907, the NTA has changed dramatically from an eclectic and catholic organization of tax professionals with a high public profile to an insular, scholarly association of mainly academic public finance economists. Using a mix of quantitative and qualitative historical evidence, we contend that the transformation in the NTA's mission and output can be explained by the increasing professionalization and specialization of tax knowledge, and by the dominant role that public economics has played in shaping that knowledge. This increasing specialization allowed the NTA to secure its position as a bastion of scholarly tax research. But that achievement came at a cost to the organization's broader civic mission. This article is thus a historical account of how two competing professional disciplines—tax law and public economics—have interacted within a particular organizational field, namely the research and analysis of tax law and policy.     

From International Sanitary Conventions to Global Health Security: The New International Health Regulations

In May 2005, the World Health Organization adopted the new InternationalHealth Regulations (IHR), which constitute one of the most radicaland far-reaching changes to international law on public healthsince the beginning of international health co-operation inthe mid-nineteenth century. This article comprehensively analysesthe new IHR by examining the history of international law oninfectious disease control, the IHR revision process, the substantivechanges contained in the new IHR and concerns regarding thefuture of the new IHR. The article demonstrates why the newIHR constitute a seminal event in the relationship between internationallaw and public health and send messages about how human societiesshould govern their vulnerabilities to serious, acute diseaseevents in the twenty-first century.     

The right of the child to be heard in education litigation: an analysis of the ‘intelligent design’ Pennsylvania case on the separation of Church and State in the public schools

This paper examines a seminal case in US education law regarding the separation of Church and State in the public schools. The issue decided was whether it is constitutional under American law for a school district to mandate reference to ‘intelligent design’ (ID) as an alternative to the theory of evolution whilst instructing students only in the latter. ID theory postulates an unspecified ‘master intelligence’ as being responsible for the origins of life. A Pennsylvania court found that ID was a religious theory and held the school district had officially endorsed ID contrary to constitutional requirements. The issue of children's participation rights was not raised by the parties or the Court and student views were not solicited. The reasons for this failure to allow students to be heard in the judicial proceedings are explored as are the implications for how the notion of children's rights is understood in North America.     

The Organization of Child Representation Services in Child Welfare Cases: A Study of Washington State

To date no empirical studies have analyzed delivery of legal services to children and considered the implications of organizational structure for child representation practice. This study of 126 attorneys in Washington State compares children's lawyers working in solo practice, private law firms, and specialty staff attorney offices. The manner in which child representation is organized has lessons for the recruitment, training, and support of such lawyers. Staff attorney offices offer a number of advantages but rural areas with fewer cases may not be able to support such offices and the attorneys in specialty offices were less experienced and report lower incomes.     

Assessing sheriff’s office emergency and disaster website communications

Sheriff’s offices are an integral component of the public health emergency preparedness and response system in the USA. During a public health emergency or disaster, sheriff’s offices need to communicate with people affected by the event. Sheriff’s office websites are logical sources for information about disaster preparedness and response efforts. No prior research evaluates emergency preparedness and response resources available through sheriff’s office websites. The current research is a national study of sheriff’s office websites to assess the availability of information relating to emergency preparedness and response. A content analysis of 2590 sheriff’s office website homepages was conducted to determine the presence or absence of nine communications elements important to people seeking information during an emergency or disaster. We found that 71.9% of sheriff’s office website homepages include links to agency services and programs, but only 6.5% provide links to emergency preparedness information. The findings of the study are useful to assess emergency preparedness and the amount of response information available, as well as to identify opportunities to improve sheriff’s office website homepages.     

The Coevolution of Public and Private Security in Nineteenth‐Century Chicago

The coevolution of private detective agencies and municipal police bureaucracies in mid‐nineteenth‐century Chicago arose from the breakdown of an older system in which the provision of law enforcement was delegated to local communities. The growth of anonymity and the presence of strangers in a city undergoing massive changes in transportation undermined this delegative system and created the perception of new public security threats. These threats were compounded by the mobilization of ethnicity in partisan politics. To address these new concerns, political and e conomic elites did not innovate, but turned to traditional practices like special deputization. The use of deputization allowed some law officers to sell their services as entrepreneurs to private firms, while also paving the way for a new bureaucratic police department. Networks of security providers locked in this transformation and made public and private policing alike a permanent feature of the city's institutional landscape.     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

To Rehabilitate or Not to Rehabilitate

In this article, we review the recommendations on corrections made by the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 and compare these with the changes made in U.S. corrections over the past 50 years. Shortly after the Commission completed its report, dramatic changes occurred that impacted correctional policy and practice as support for law and order and correctional control moved corrections far from the Commission's recommendations for rehabilitation. The results of this research demonstrate that these approaches have not solved the nation's crime problems and have imposed hardships on individuals and communities. A current focus on evidence‐based corrections may provide a model for future decision making depending on whether the “times are ripe” for a return to a philosophy of rehabilitation. Any new commission will benefit from the research evidence that points to successful correctional interventions. Yet, there is much that still needs to be studied and learned. A new commission must be aware of and respond to the broader social conditions and beliefs and opinions of policy makers and the public that will influence receptivity to correctional reform. Recommendations should include clear guidelines for how research findings could be used to answer the still unanswered questions about rehabilitation interventions, as well as for how to ensure quality program delivery and public safety.     

Shrinks vs. shysters

In 1976, the Pennsylvania legislature passed a new mental health law which was designed to give civil and due process rights to the mentally ill, as well as to speed up the deinstitutionalization process. The psychiatric profession voiced loud disapproval of the new law. The public interest bar entered the issue, opposing the psychiatrists. In 1978, the law was amended, and most of the hard-won patients' rights were lost. This paper analyzes the reasons behind the psychiatric demand and victory, as well as the reasons for the lawyer's unsuccessful opposition, using two similar battles, one fought in the British Parliament in the eighteenth century, and one in the California legislature in the early twentieth century. Conclusions are drawn concerning the reason for the legislative “turnabout,” and predictions concerning the course of future battles are made.     

The Authority and Interpretation of Regulations

In the past half century, governments have increasingly relied on regulations—secondary legislation issued by administrative bodies and departments—to impose obligations on private parties, multiplying the occasions for regulatory interpretation. This article develops a theory of regulatory interpretation. It argues that such a theory involves understanding the authority of regulations. Turning to the public law of the UK, US, and Australia, this article identifies an intriguing similarity; in each case, regulations have authority when they rationally and nonarbitrarily implement delegated power within the means permitted by statute. The article then argues that this account of regulatory authority justifies a common approach to interpretation in which the object of interpretation is the purpose the regulation seeks to implement, discerned from the regulation's text and accompanying explanation of its purpose, and constrained by background legal norms.     

English population statistics before 1800

The first national census of the British population was organized in 1801; the civil registration of births, marriages, and deaths commenced in 1837; and the first tentative attempt by the state to compile statistics on migration was included in the census of 1841. Prior to 1801, the chief source of information on the demography of the country was provided by the clergy's registration of baptisms, marriages, and burials that had occurred in their parishes, supplemented by information on mortality in the Bills of Mortality that were published for certain large towns and by inferences drawn from various counts of taxpayers. The article focuses on the reliability of the parochial registration system and the way in which it was exploited by the state as measured against the state's objectives for establishing it in 1538. These objectives were rarely achieved. By the end of the 18th century, the parish registers were falling short of providing a national system of registration. Neither had the registers at any time provided the requisite detail to allow the verification of age, lineal descent, or right of inheritance. They had not been used as a way of raising revenue except briefly between 1694 and 1705. Moreover, the Anglican Church was extremely lax about the enforcement of its own regulations regarding the appropriate time for registering baptisms, burials, and marriages.     

The ‘Reasonable Man’, his Nineteenth‐century ‘Siblings’, and their Legacy

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth‐century common law. This article introduces the man's siblings – including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial; this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person ‘ (negligence) and the ‘person skilled in the art’ (patents).     

Rationalism in Public Law

Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice. It culminates in the triumph of abstract principles over practical knowledge in a manner that erodes our ability to engage in political activity. Although Oakeshott's critique was made with the practice and study of politics in mind, it has a wider relevance. Rationalism, as we see it, has become the dominant style in public law. We draw upon Oakeshott's critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.     

The Political Styles and Organizational Strategies of American Prosecutors: Examples from Nine Courthouse Communities*

This paper focuses on the relationship between the political styles and organizational strategies of prosecutors in nine medium-sized courthouse communities in the United States. Three political styles are identified and a choice model developed that rests on the prosecutors' satisfaction or dissatisfaction with the status of their offices and on their view regarding the expected value of conflict. In turn these styles lead to different organizational strategies in which bureaucratization and office culture, given the mediating effects of office size and staff loyalty, are used as policy tools to achieve prosecutor goals.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

The Nature and Effect of the Anglo-Saxon Vernacular Will

Scotland took its time in abolishing irregular marriage. While the Roman Catholic Church stopped recognising irregular forms in 1563, and England followed suit two hundred years later with Lord Hardwicke's Act of 1753, Scotland retained the medieval canon law of irregular marriage until 1940. This article exposes the various interests lobbying for reform of the law of formation of marriage in Scotland during the 1920s and 1930s and the assertions and arguments they employed and reveals the main factors which resulted in the success of this lobbying at this particular point in time: the influence and attitude of the Church of Scotland, and, echoing the scandal of Fleet marriages in England before the 1753 Act, the availability of circumstances at Gretna Green which could be portrayed as a scandal.