The Rule of Law and Automation of Government Decision‐Making

Governments around the world are deploying automation tools in making decisions that affect rights and entitlements. The interests affected are very broad, ranging from time spent in detention to the receipt of social security benefits. This article focusses on the impact on rule of law values of automation using: (1) pre‐programmed rules (for example, expert systems); and (2) predictive inferencing whereby rules are derived from historic data (such by applying supervised machine learning). The article examines the use of these systems across a range of nations. It explores the tension between the rule of law and rapid technological change and concludes with observations on how the automation of government decision‐making can both enhance and detract from rule of law values.     

The Costs and Benefits of Transferring Technology Infrastructures Underlying Complex Standards: The Case of IPv6

Industry stakeholders and Internet experts generally agree that networks using Internet Protocol version 6 (IPv6), an Internet communications standard which is being promoted strongly by many parties, would be technically superior to today’s networks, which are largely based on IPv4. The improvements designed for IPv6 could provide numerous benefits to Internet users, network administrators, and applications developers; among these potential benefits are cost reductions due to improved security and increased efficiency, improvements to existing products and services, and innovations leading to new products and services. However, there is wide disagreement about the characteristics and timing of benefits associated with IPv6, and the costs associated with the transition could be substantial. In this paper, we will discuss the likely costs of a transition to IPv6 for the major stakeholders and the potential benefits. Subsequently, we will introduce the cost impact of an accelerated adoption case and discuss potential ways in which the government could become involved in the process. This paper is based on a broader study funded by the National Telecommunications and Information Administration (NTIA) and National Institute of Standards and Technology (NIST). We wish to thank Greg Tassey, Fred Lee, Tim Sloan, B. Keith Fulton, John Streck, and Baran Erkel for comments and suggestions on earlier versions of this paper.     

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.     

The Environmental Justice Movement: Equitable Allocation of the Costs and Benefits of Environmental Management Outcomes

We present a review of theoretical and methodological advances in the social scientific literature on environmental inequality/racism and argue for new directions in research efforts that pay more attention to (1) the historical forces driving environmental justice conflicts; (2) the complex role of stakeholders in these struggles; (3) the role of social inequality, particularly the trade-offs between environmental protection and social equity; and (4) the impact of social movement activity on the state of environmental protection. Drawing on a case study of an environmental justice conflict in the United States, we find that environmental inequality impacts many actors with often contradictory and cross-cutting allegiances. These struggles therefore become a moving drama—a process—rather than a cross-sectional outcome. We conclude with an analysis of environmental inequality on a global scale and argue that the role of transnational capital remains largely untheorized in the literature. We suggest new models for explaining environmental inequality's causes and consequences.     

Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making

Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision‐making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non‐state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.     

Selectively Incapacitating Frequent Offenders: Costs and Benefits of Various Penal Scenarios

A small number of offenders are responsible for a disproportionate share of total crime. Policy makers have been seeking to reduce crime more efficiently by targeting corrections at these frequent offenders. Thus far, both macro- and micro-level research have yielded mixed results regarding the effects of these kinds of selective policies. The current study uses data from the Netherlands Criminal Career and Life-course Study to estimate the incapacitative effects of alternative selective prison policies. Using the rolling cohorts method, implementations of various penal scenarios differing in selection rate, sentence disparity and selective accuracy are simulated. Results show that it is hard for selective policies to yield a positive societal result: costs of imprisonment typically exceed benefits gained from crimes prevented.

Political Constitutionalism and the Question of Constitution‐Making

The debate on political constitutionalism has entirely neglected the constitution‐making dimension. This is probably due to the fact that constitution‐making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution‐making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism.     

The Impact of District Magnitude on Voter Drop‐Off and Roll‐Off in American Elections

This study demonstrates that multimember districts (MMDs) complicate ballots, reduce voter information, and increase incentives for strategic voting in ways that reduce voter participation. Using data from three states that elect members of at least one legislative chamber from both single‐member districts (SMDs) and MMDs, we test hypotheses about the impact on MMDs on ballot drop‐off (selecting fewer candidates for an office than permissible) and roll‐off (not voting in down‐ballot races). We find support for both sets of hypotheses, with the strongest results related to ballot drop‐off. The results have broad implications for voter participation, representation, and election administration in the many states and localities that use MMDs to elect public officials.     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

Expediting Permanency through Community Decision‐Making

Permanency for children has taken on a renewed urgency since passage of the Adoption and Safe Families Act of 1997. This article describes the process of building a community approach to using alternative dispute resolution for expediting permanency, and reports on the initiative's progress to date. Expediting Permanency through Community Decision‐Making, a U.S. Department of Health and Human Services‐funded demonstration project, is simultaneously building community collaboration around the specific issue of permanency and establishing alternative dispute resolution models as a key component of permanency planning services. Lessons learned from implementation are instructive for others embarking on a community response to the demands of ASFA.     

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.     

Rape,Defendant Anonymity and Evidence‐Based Policy Making

In 2010, the Coalition government announced in its Programme for Government, that: ‘We will extend anonymity in rape cases to defendants.’ The question of anonymity for defendants accused of rape and other sexual offences, has been repeatedly raised in parliamentary debates over several decades, and has also received frequent attention in newspapers and, to a lesser extent, in academic and professional literature. The debate includes an array of factual claims and arguments that rest on weak empirical foundations. In November 2010, the Ministry of Justice published a report entitled: Providing Anonymity to those Accused of Rape: An Assessment of Evidence, which was intended to provide an evaluation of evidence that would inform the debate over defendant anonymity. This article critically examines this report and its discussion of key issues such as false rape allegations, and considers whether its conclusions can be relied upon by policy makers.     

The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance

This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.