State Solicitors General,Appellate Expertise,and State Success Before the U.S. Supreme Court

This article examines how institutional design leads state governments to win their cases before the U.S. Supreme Court. We analyze whether states are more likely to prevail on the merits when they create a formal solicitor general office and have an attorney from that office argue their cases before the Court. We employ an analytical matching approach and find that attorneys from state solicitor general offices are significantly more likely to win their cases compared to other kinds of state attorneys. Accordingly, if states prioritize victory before the Court, they should consider creating state solicitor general offices and granting those solicitors general the authority to control their appellate litigation.     

State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa,Burundi and the Gambia

In 2016 three African states namely South Africa, Burundi and The Gambia submitted written notifications of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) to the Secretary-General of the United Nations pursuant to Article 127 of the Rome Statute. Although the African Union welcomed and fully supported the three withdrawal notifications and considered them as ‘pioneer implementers’ of its ‘Withdrawal Strategy’, The Gambia and South Africa withdrew their notifications of withdrawal. Some other states – Kenya, Namibia and Uganda – have made threats to submit withdrawal notifications. This article examines four issues arising out of the said withdrawal notifications. First, why did the three states submit withdrawal notifications from the Rome Statute? Second, what is the impact of the three states’ withdrawal notifications? Third, is the African Court on Human and Peoples’ Rights (or the yet-to-be-established African Court of Justice and Human and Peoples’ Rights) a suitable African regional ‘alternative’ to the ICC? Finally, what steps might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute?     

The Role of the United States Supreme Court in Shaping Federal Drug Policy

Through judicial review, the United States Supreme Court has played a pivotal role in deciding and/or interpreting the constitutionality of legislation. Since the passage of the Pure, Food and Drug Act in 1906, the Supreme Court’s role has been integral in formulating drug policy. In some instances, the Court’s decisions have limited the authority of the federal government, while in others have greatly expanded this authority. As a direct result of the decision-making of the Supreme Court, limitations have periodically been placed on Congress to regulate controlled substances. Many people, who were perceived as medical patients, became criminal drug users. The Court has restricted and later approved of the use of drugs during the free exercise of religion. Lastly, the Court has continually reinforced the supremacy of the federal government over the states, in turn limiting the ability of the states to consider marijuana legislative reform.     

Judicial Waivers of Parental Consent for Abortion: Tennessee's Troubles Putting Policy into Practice*

According to the U.S. Supreme Court, minors seeking abortions are entitled to petition for relief from state‐mandated parental consent. To facilitate the actualization of this right, Tennessee included procedural mechanisms that go beyond those in effect in most states in its parental consent statute. This paper examines whether these additional mechanisms allow Tennessee to succeed where other states have failed. Our findings indicate that these mechanisms mitigate to some extent the sort of implementation failure observed in other states. However, the magnitude of this mitigation is not sufficient to establish that parental consent statutes can be implemented in accordance with Supreme Court requirements.     

Keeping the Family Together: Why New York Must Amend Evidence Rules to Protect a Parent's Right to be a Parent

In New York, hearsay statements made by children may be admissible in a child protective proceeding. Under Article 10 of the Family Court Act, an out‐of‐court statement only requires corroboration to support the statement's reliability. The Family Court has the choice to determine what evidence will be sufficient for corroboration. In comparison to other statutes from different states, New York's statute is very broad. This Note proposes amending the current evidence statute under Article 10 of the Family Court Act to strengthen the standard for admitting hearsay statements in child protective proceedings.     

Gaughran vs the UK and public acceptability of forensic biometrics retention

This commentary provides a response to the European Court of Human Rights ruling in the case of Gaughran vs the United Kingdom on 13 February 2020. The Court ruled that the indefinite retention of DNA, fingerprints and facial images from all convicted adults was disproportionate. Using data from a survey on public attitudes, we examine the public acceptability of the police retention of forensic biometrics from the population.     

Rating the intrusiveness of law enforcement searches and seizures

This article presents the results of a survey that asked 217 subjects to rate the “intrusiveness” of 50 different types of law enforcement investigative techniques, taken primarily from U.S. Supreme Court cases. Respondents disagreed strongly with many of the assumptions the Court makes about privacy and autonomy. Additionally, three theories are developed to help explain perceptions of intrusiveness.     

Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

The Legal Character of the Optional Clause System

In international legal writing the therm "optional clause" is construed to mean Art. 36. para. 2. of the Statue of the International Court of Justice, which allows the states parties to unilaterally declare that they recognize as compulsory, in relation to any other state accepting the same obligation, the jurisdiciton of the Court in specified categories of legal disputes. The above mentioned declarations from a special system called the system of complusory jurisdiction. The legal character of the optional clause and the system of complusory jurisdiction deserves attentionnot only because it embodies a theoretical issue, but also because it is of great practical relevance, considering that the answares to be given to a number of important matters associated with declarations of acceptance -such as the rules governing withdrawal or termination of declarations or its admissibility, the legal effects of reservation and restrictions attached to declarations, interpretation of declaration- depend on how one looks on the legal character of the clause. One trend will emphasize the unilaterial nature of the system of clause, while the other will conceive of the resultant relations as between states accepting the compulsory juridiction of the Court as a contractula relationship.     

Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court

The question to what extent amnesties and pardons may bar criminalinvestigations or prosecutions under the Statute of the InternationalCriminal Court (the Statute) has been left unresolved by theRome process. This essay seeks to develop some general guidelinesthat may help the Court to address this problem, should it arisein a specific case. It suggests four basic principles to dealwith the issue of amnesties and pardons: (i) the Court has interpretativeautonomy to decide whether an amnesty or a pardon is permissibleunder the Statute; (ii) exemptions from criminal responsibilityfor the core crimes within the jurisdiction of the Court byamnesties or pardons should generally be considered incompatiblewith the Statute; (iii) prosecution by states and by the Courtmay be limited to the most serious crimes and the most responsibleperpetrators (targeted prosecution); (iv) amnesties or pardonsshould, if it all, only be permitted in exceptional cases, namelywhere they are conditional and accompanied by alternative formsof justice.     

Enlargement at the European Court of Justice: Law,Language and Translation

The enlargement of the EU to 25 Member States in May 2005, followed by the accession of two more states in January 2007, raised a number of questions concerning the organisational structure of that Union—the sheer scale of the largest EU expansion to date highlighted the need to restructure EU institutions. For the European Court of Justice (ECJ), enlargement meant a huge influx of people to staff new divisions in the administrative hierarchy of the Court. This article describes the process and effects of enlargement at the ECJ, particularly in relation to translation and the language regime of that Court. Prior to the May 2004 and January 2007 enlargements there was a general perception among those working at the Court that enlargement would result in significant dislocation of life at that institution. In particular, it was felt that the translation directorate would not be able to cope with the addition of 11 ‘new’ languages to the list of official EU languages. The reality, however, was far from the disaster that many had predicted. That said, even a mere year following the May 2004 enlargement, a number of changes in the functioning and dynamics of that Court were already noticeable.     

马萨诸塞州诉美国联邦环保局案的述评

马萨诸塞州诉美国联邦环保局案是美国第一件具有里程碑意义的气候变化公益诉讼案件,该案体现了美国各州和民间力量通过公民诉讼方式促进政府采取温室气体减排行动的艰巨努力。该案从联邦上诉法院一审到联邦最高法院再审,始终存在较大争议,其中关于原告诉讼资格的争议更是人声鼎沸。在联邦最高法院判决中,原告仅以微弱优势胜诉。尽管关于原告胜诉的理由仍有颇多争议,但该案在明确温室气体属于《清洁空气法》的调整范围、拓展气候变化公民诉讼原告的诉讼资格以及确立公民诉讼可以促进政府采取减排行动等方面,都具有非常积极的意义。     

The Past and Future State of De Facto Parents in New York

Over the past two decades, the definition of “family” has expanded drastically. To address these changing family dynamics, many states have adopted de facto parent laws, which recognize a nonbiological or adoptive parent's right to petition for custody or visitation in strict circumstances. These laws differ drastically from state to state, leaving no common understanding of the requirements to be a de facto parent. Until recently, New York law refused to recognize de facto parents within the Domestic Relations Law, leaving New York as one of the only states without this important distinction. However, this year the Court of Appeals crafted a narrow exception to the rule and allowed for a de facto parent to petition for custody or visitation in extremely limited circumstances. This article proposes that the Court of Appeals’ decision was too restrictive and that New York should adopt a legal framework that reflects this new type of parent, while still recognizing public policy concerns.     

国际法院解释领土条约的路径、方法及其拓展

领土主权属于一国的根本问题。由于部分领土条约相关条款过于原则或模糊不清,当事方会产生条约解释上的国际争端。通常,国际法院依据《维也纳条约法公约》第31、32条规定的解释规则进行阐释。但是,领土条约具有与一般条约不同的特性,这一特性也决定了其解释方法的特殊性。条约解释与争议领土主权的归属存在密切关系,不当解释会严重损害当事国的领土主权。正是出于此顾虑,国际法院过于严格遵照条约文本语言表述的精确性,但在司法实践中又出现一定的矛盾与反复,甚至在个案中弱化条约解释的价值,转而以有效统治作为判案的法理依据。国际法院的做法动摇了国际社会相关当事方将领土争端提交国际法院,采取法律方式解决纠纷的信心,值得关注和深入研究。     

Capital punishment politics and policies in the States, 1977–1997

Since the U.S. Supreme Court ruled the death penalty constitutionalin 1976, thirty-eight states have readopted new capital punishmentstatutes consistent with Supreme Court decisions on procedural guidelines. While much of the literature about capital punishmentaddresses the legal aspects of the issue, this essay examines thepolitics of the major institutions of state government in the formulation of capital punishment policies. In some states, thereis agreement between key officials in the institutions on the desirability of, or opposition to, capital punishment. However, inmost other states, the debate over the appropriateness of deathpenalty policies is vigorously waged between the executive, legislative and judicial branches. Overall, 432 felons were executedin 30 states between 1977 and 1997. However, no executions haveoccurred in nine of these states. Twelve states have no provisionsfor the death penalty. The majority of executions since 1977 havetaken place in just six states. In addition to the abolitioniststates, the others can be categorized as (1) aggressive executioners,(2) occasional executioners, (3) reluctant executioners, and (4)nonusers where the death penalty has been restored for politicalpurposes but no executions have been carried out in over two decadesand none are likely to be in the immediate future given the minisculenumber of inmates on death row.     

Policy deviations,uncertainty, and the European Court of Justice

The implementation of European Union directives into national law is at the discretion of member states. We analyze incentives for member states to deviate from these directives when the European Commission may sue a defecting member state and rulings at the European Court of Justice (ECJ) are uncertain. We find that higher uncertainty about the preferences of the ECJ increases policy deviation, irrespective of whether a case is taken to court or not. If decisions of member states to deviate are interdependent, the incidence of filed cases decreases while for those policies reaching the ECJ deviations increase.     

错误的生命之诉的法律适用

错误的生命之诉是近年来出现的一种新型诉讼。目前,法国、美国五个州的最高法院准许了原告就此提起的财产损害赔偿请求,而英国、美国19个州的最高法院、加拿大的两个省、德国联邦宪法法院均驳回了原告的损害赔偿请求。但实际上,全部或部分驳回原告方诉讼请求所持的理由并不成立,原告的确受到了侵害,受侵害的客体是拥有充分知情的父母的利益。     

An Improved Protection for the (Mentally Ill) Trans Parent: A Queer Reading of AP,Garçon and Nicot v France

The European Court of Human Rights has been deciding cases concerning LGBT rights since the early 1980s. Its case law on trans rights has changed drastically over time, imposing upon the states of the Council of Europe certain minimum standards regarding the legal recognition of gender identity. In its recent judgment of April 2017 the Court laid down a new rule to be adopted by domestic legislation; namely, that the legal recognition of gender transition cannot be made conditional upon pursuing medical or surgical procedures which have (or are likely to have) sterilising effects. This article analyses the judgment from a critical perspective grounded in queer theory, noting both the positive and the negative elements of the Court's decision.