Incitement to Religious Hatred: All Talk and No Substance?

The Racial and Religious Hatred Act 2006 has a frenetic history. It is the culmination of six attempts in Parliament in the last twelve years to make incitement to religious hatred unlawful. ¹ 1 Lord Lester proposed two amendments to the Criminal Justice and Public Order Bill, June 1994 and the (Lord) Bishop of Oxford moved an amendment in July 1994. Lord Avebury introduced a Religious Offences Bill in 2001. The government has tried three times: in the Anti‐Terrorism, Crime and Security Bill in 2001; in the Serious Organised Crime and Police Bill, introduced in November 2004 and (successfully) in the Racial and Religious Hatred Bill, introduced June 2005.
Each attempt has met with intense criticism. But now that the legislation is here, what may it achieve?     

Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?

Research on racism in the criminal justice system generally focuses on the role of the jury; yet, the vast majority of convictions are obtained through plea bargains. This research addresses the role of the defense attorney and proposes that disparities in sentence length and incarceration rates between African Americans and Caucasian Americans are in part due to the plea bargains that defense attorneys recommend these clients accept. Using practicing defense attorneys from around the country, findings indicate that the pleas attorneys felt they could obtain with a minority client contained higher sentences (adjusted M = 2.88) than those they felt they could obtain with a Caucasian client (adjusted M = 2.22) and were significantly more likely to include some jail time. Reasons for the disparate recommendations were not due to increased perceptions of guilt with the minority client nor to perceptions that the minority client would fare worse at trial. Theoretical and practical implications are discussed as well as possible future directions.     

N v UK: No Duty to Rescue the Nearby Needy?

This article discusses the deportation of a seriously ill foreign national to her country of origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment. It criticises the reasoning of the judgment N v UK of the European Court of Human Rights, and explores the circumstances under which removal of a severely ill non-national constitutes a breach of the prohibition against inhuman and degrading treatment under the European Convention on Human Rights.     

No Harm No Foul? Objectivism and the Law of Attempts

Law and Philosophy -     

Adolescents and mental disorder: who consents to treatment?

Although English law recognises that developing adolescents may acquire the capacity to make decisions about medical treatment themselves it does not address the problem of mentally disturbed or disordered adolescents. This article examines the nature of adolescent refusal of treatment and suggests that a line be drawn between three categories of adolescent disturbance--the competent young person who refuses treatment that an adult too may refuse, the rebellious teenager whose refusal is triggered by simple teenage angst, and the mentally ill teenager whose refusal is triggered by mental illness. It suggests that adolescent autonomy needs to be more fully understood and the Mental Health Act more readily used in treating young people.     

“Fair and Balanced?” Justice Issues on Political Talk Shows

Like their news program predecessors, many political talk shows focus a considerable amount of their coverage on justice issues. Although numerous past studies have examined justice issue presentation in news programs, infotainment, and crime drama, to date only one forthcoming study has examined crime and justice coverage on political talk shows. Political talk shows often present issues in a debate format, as well as emphasize the balanced nature of the content in advertising, with one program even using the slogan “fair and balanced.” Building upon the format of previous media studies, we analyzed a composite month of videotaped footage of three popular political talk shows appearing on cable networks: CNN’s Lou Dobbs Tonight, MSNBC’s Hardball with Chris Mathews, and The O’Reilly Factor from the Fox News Channel. Using content analysis techniques, this study examines balance in the form and content of these programs in terms of presentation of justice issues, political party identification of hosts and guests and realistic presentations of race and gender in the context of crime and justice. Results indicate that these programs tend to adopt an advocacy tone rather than an objectivist one. Furthermore, we demonstrate that racial and gender portrayals of crime and justice on these shows are significantly distorted from reality, with a priority afforded to white female victims of violent crime and minority male offenders.     

Can We Talk? What We Have Learned About How to Have Productive Conflicts About Family Policy and Family Law

How we handle professional conflicts affects our capacity to help others in conflict. Two AFCC dialogues, one about domestic violence, the other about shared parenting, illustrate the challenges of taking on professional differences. The former resulted in considerable consensus. The latter involved a frank exchange of differences but little overall consensus. It was, however, an important beginning of a critical conversation. Other issues calling out for constructive conflict engagement, include the crisis in providing access to justice for family litigants who cannot afford legal representation. Professional groups must move beyond defending their own self interests to addressing this crisis.     

European Citizenship and the Right to Reside: ‘No One on the Outside has a Right to be Inside?’

This paper deals with the question: Who ought not to be excluded from the enjoyment of European citizenship rights? Recently, the Court of Justice has ruled that, in exceptional situations, the ‘genuine enjoyment of the substance of rights attaching to European citizenship’ can be invoked in order to also extend legal protection to specific categories of third country nationals. I will argue that the ‘genuine enjoyment’ formula is not only setting an innovative jurisdictional test concerning European citizenship rights, but that it is also highlighting how the traditional account of citizenship (from status to rights) can be conceptually reversed. This happens in threshold cases, where the tenability of the schema of distribution of rights, agreed within a political community, depends on the possibility to readjust the boundaries of political membership.     

The Spanish Parliament and EU Affairs in the Post Lisbon Treaty Era: All Change?

The new provisions on national parliaments in the Lisbon Treaty were welcomed with scepticism by some scholars and with hope by others. Sometime after the new provisions came into force, their impact on the role of national parliaments in the EU can already be examined. This article looks into the effect of the implementation of the Early Warning Mechanism and the other provisions on the parliamentary scrutiny of EU affairs in Spain. It also reflects on the possible implications for the EU political system. Although the scope and actual effect of the new measures have been quite modest, the new regulations allow for a better scrutiny of EU law, a tighter control of the executive on EU affairs and closer cooperation with EU institutions.     

The Mandatory Bid Rule: Efficient,After All?

The mandatory bid rule has its origins in the UK and now applies throughout the EU and in many other jurisdictions. Under a mandatory bid, an acquirer of a controlling stake in a listed company has to offer to the remaining shareholders a buy‐out of their minority stakes at a price equal to the consideration received by the incumbent controller. While the rule warrants that no value‐destroying control transfers take place, it is often criticised for preventing value‐increasing transactions. This paper challenges some of the claims made by critics of mandatory bids. Highlighting the effects of synergy gains in private sale‐of‐control transactions, it is shown that mandatory bids prevent inefficient control transfers, where minority shareholder protection rules provide inadequate protection. Furthermore, mandatory bids help facilitate transfers to the most efficient bidders in multi‐bidder settings. The mandatory bid is justifiable, on economic grounds, in wider circumstances than is commonly assumed by law and economics scholars.     

Self-Reported Communication Variables and Dating Violence: Using Gottman’s Marital Communication Conceptualization

Communication behaviors, while extensively studied within the marital field, have received only peripheral attention in violent dating relationships. The purpose of this research was to better establish empirical continuity between the marital and dating literatures by exploring communication variables that have been identified in marital relationships broadly and their self-reported manifestation in violent dating relationships. Using Gottman’s (1999) marital communication conceptualization, individuals were assessed on adaptive and maladaptive communication variables and relationship aggression. Results suggested that negative communication behaviors were associated with, and predicted, aggression in participants’ dating relationships, consistent with findings from the marital literature. However, repair attempts, generally considered an adaptive communication behavior, predicted aggression victimization. Implications and how these data fit within the context of recent research on positive marital communication behaviors are explored.     

Arbitration and Incentives: How to Preclude the Chilling Effect?

We seek to establish a mechanism for an arbitrator, as a set of rules used to control parties' incentives. We assume that the arbitrator is allowed to commit himself to a decision rule ex ante. The results show that the parties' messages reveal their private information if the costs of lie are high enough and if the decision rule is random. The decision rule described can apply to conventional arbitration and to final-offer arbitration.     

Banks and the Communities They Serve: Time to Legislate?

In March 2007 HM Treasury published its latest thoughts on Financial Inclusion (HM Treasury Financial inclusion: The way forward, 2007), highlighting that after 10 years of activity in this area there is still growing evidence that the market is not meeting everyone’s needs, with significant numbers of people not able to access basic financial services such as credit. This continues alongside media stories of further bank branch closures in some areas, branches for high income earners only in others and the continuing controversy surrounding charges. This article will, with reference to the UK government’s financial inclusion agenda assess whether the time has come to implement legislation mandating that UK credit institutions have regard to customers needs when making decisions that could affect those most at risk from restricted access to financial services. These needs can include both access to affordable credit and access to financial services, such as bank accounts. The paper will use as a comparator the much talked about United States Community Reinvestment Act, enacted in 1977 and since amended, hailed (Barr New York University Law Review 80:513, 2005) and criticised (Macey and Miller Virginia Law Review 78:291, 1993) in equal measures, designed to ensure that depository institutions meet the credit needs of the communities they serve, particularly low and moderate income areas. Although not designed to tackle the perceived problems identified by the UK government, would enactment of similar legislation do more to achieve these aims that the activities undertaken so far. The article proposes that one way in which to improve the fight against financial exclusion is to improve the disclosure requirements of financial institutions, forcing them, where necessary, to provide data on lending patterns in disadvantaged areas.

No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia

Many argue that East Asian countries have come to adopt ‘aggressivelegalism’ in trade and investment policy, in the sensethat they have come to settle their trade and investment disputesthrough the dispute settlement mechanism (DSM) of the WTO andthe other third-party procedures. Scrutiny of the dispute casesof these countries shows, however, that East Asian legalismis not so aggressive, that it varies country by country, andthat there still exists room for negotiated deals in settlingtrade and investment disputes among them. On the other hand,the recent move toward regional integration through free tradeagreements (FTAs), economic partnership agreements (EPAs), andbilateral investment treaties (BITs) in East Asia may lead tothe adoption of a more aggressive legalism in the region, inparticular in settling investment disputes, disputes relatingto intellectual property rights, and trade remedies.