The Public Trust as an Evolutionary Doctrine: How the Trust can be Used to Allege an Injury Under Standing

The public trust doctrine provides protection of public access to resources, such as navigable waterways, protected under the public trust. The doctrine has evolved over time to protect natural resources such as tidelands, submerged waterbeds, wildlife, and climate change. Juliana v. United States is a groundbreaking trust case that moves the application of the trust to the management of climate-change regimes. Although the doctrine has been criticized as a façade, forestalling real recourse for change, it can be used to show standing for current and future generations. Accordingly, Juliana outlines how this doctrine is not just evolutionary it is also revolutionary.     

A Commentary on Ward and Stewart's Model of Human Needs

Abstract

It is often assumed that offenders employ socially desirable responding when completing self-report questionnaires, thereby invalidating such measures. The aim of this study is to examine the extent that sexual offenders employ socially desirable responding and the impact that socially desirable responding, as measured by the Balanced Inventory of Desirable Responding-6 (BIDR: 6, Paulhus, Journal of Personality and Social Psychology, 46, 598–609, 1984), has on self-report measures. The sample comprised 1730 adult males, all convicted and serving a sentence for a sexual offence. The entire sample had completed a set of self-report measures used to identify treatment needs, and examine progress in treatment. The results indicate that the extent of socially desirable responding is smaller than assumed, and its impact on a number of self-report measures is lower than expected. Furthermore, lower levels of risk of sexual re-offending were significantly associated with higher scores on the impression management subscale. We suggest that impression management should be viewed as more of a trait-like tendency rather than a validity check, and the use of this scale in determining whether or not to interpret other self-report instruments should be questioned. The present study also indicates that self-report questionnaires used with forensic populations may be accurate and valid. Implications for research and practice are discussed.     

Books Received

abstract

David Wilkinson. Environment and Law. Routledge, New York. 2002. 312 pp. Hard cover, $80.00. Paper, $25.95 *

Tim W. Clark. The Policy Process: A Practical Guide for Natural Resource Professionals. Yale University Press, New Haven, CT. 2002. xii + 215 pp. $35 (hard cover), $18.50 (paper)

George M. Woodwell. Forests in a Full World. Yale University Press, New Haven, CT. 2001. xxii + 231 pp. $30.00 (hard cover), $15.00 (paper)     

Introduction: disability,partnership, and family across time and space

ABSTRACT

Notions of family life and romantic partnership, like notions of disability, have been culturally constructed and socially produced over historical time, and our understandings of these notions are being continually challenged and re-negotiated across time and space. Policies, institutions, and cultural practices across the globe have brought about changes to the construction of the family and to the rights and inclusion of disabled people in private and public life. This special issue brings together a collection of studies from different countries and time periods to explore the interplay between disability, romantic partnerships, and family life across the individual lifetime and between generations. With this interdisciplinary collection, we seek to merge disability research and research on family and partnerships through a life course lens. This offers unique insights and opportunities to interconnect historical and cultural location and changing social institutions with individual and family experiences. This introduction presents the eight studies in the collection and discusses them within a life course frame that views disabled people’s roles as partners, spouses, and members of a family. In so doing, it engages in an analysis of (dis)similarities concerning how family dynamics, romantic relationships, and disability have developed over time and in different spaces.     

Financial Torts and Investor Protection: Is the Europeanisation of Third State Cases a Viable Solution?

Due to the growing globalisation of financial markets, non-EU market operators which act outside the EU are increasingly causing direct harm to European investors. This issue, and its relevant impact on investor protection, has already been considered by the European legislature at the substantive level. This article seeks to demonstrate that, at the private international law level, the Europeanisation of third state cases would increase both the degree of investor protection and investors’ equal access to justice. Focusing exclusively on financial torts, the advantages arising from the application of Brussels I bis heads of jurisdiction to non-EU defendants are assessed with regard to insider trading and Credit Rating Agency liability cases. The paper also examines the main critical elements related to such an extension of the Brussels I bis regime, especially from a systematic perspective, and suggests possible future approaches to this issue.

     

Law of Denial

Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland’s criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of ‘history’ and ‘historians’ in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law’s relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law’s understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial.

     

Bowden v. Caldor

Abstract

Using the facts of the Bowden v. Caldorlawsuit in which Bowden alleges the intentional infliction of emotional distress, defamation, false imprisonment, malicious prosecution, and wrongful discharge against his employer, this paper explores the mistreatment at the hands of private security officers and store personnel. This exploration is important because it discusses several issues such as: (1) the racially influenced misconduct of private security officers; (2) the damage awards often awarded to victims of private security misconduct; (3) the effect deceptive practices can have on false confessions, especially those of juveniles; and (4) the abuse of juveniles by private security officers. To curtail abusive practices, the authors recommend that store owners establish more stringent store policies pertaining to handling employees during theft investigations.     

Constitutionalism,populism, and the imaginary of the authentic polity: a socio-legal analysis of European public spheres and constitutional demoicratization

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.     

How Migrations Affect Private Orders: Norms and Practices in the Fishery of Marseille

The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship generally argues that social norms guarantee the efficiency of private orders and their ability to resist the arrival of newcomers. My data suggest that the Prud'homie has failed to accommodate social changes prompted by migratory flows, not despite but because of its social norms. This paper suggests that social norms are not only powerful tools of governance for private orders, but also forces of inertia that can prevent these orders from accommodating social changes.     

Spanish Validation of the Brief Child Abuse Potential Inventory (BCAP)

The Child Abuse Potential Inventory (CAP) is a widely used instrument to assess the potential for child abuse. The brief version of the CAP (BCAP) is a proven time-efficient screener tool. This investigation aims to propose a Spanish BCAP version by analyzing the factor structure of its Abuse Scale (aim 1) and, if needed, developing a valid BCAP Lie Scale (aim 2). Study 1 comprised 205 mothers with problems coping with their children’s behavior recruited from family support and treatment programs. Confirmatory factor analysis (CFA), internal consistency, and convergent validity were conducted. Study 2 applied an experimental between-subject design to assess a convenience sample of the Spanish population (N?=?260) with 124 participants in Condition 1 (honest) and 136 in Condition 2 (lie). Differences between conditions were analyzed. Study 1: CFA showed adequate fit indices for the seven-factor model (RMSEA?=?.04 CFI?=?.98, TLI?=?.98). Internal consistency and convergent validity were adequate for the Abuse Scale. Findings also showed that the BCAP Lie Scale does not accomplish the main requirements to detect participants answering in a socially desirable way. Study 2: A new set of six items showing significant differences between conditions (U =?15,481.00, z =?11.14, p <?.001, r =?.77) is proposed to compose the Lie Scale. The findings support that the Spanish BCAP is a valid instrument to assess mothers recruited from Child Protection Services. The new BCAP Lie Scale could be useful to select valid inventories. Further research with more representative samples is recommended.

     

State ‘parenthood’ and vocational orphanages (islâhhanes): Transformation of urbanity and family life

Ottoman urban reform policies not only targeted the rehabilitation and rebuilding of provinces, cities, streets, and squares; they also aspired to refashion the inhabitants of urban spaces. Vocational orphanages (?slâhhanes) of the latter half of the nineteenth century were, in that respect, instrumental in removing minor vagrants, beggars, and street children from urban areas according to redefined borders of urban security and visibility and in reintegrating them into society through training and employment in arts and crafts. As much as this initiative was a significant step on the part of the state to intervene in family life and child-rearing practices, the research also points to the agency of poor parents in demanding and benefiting from state welfare policies.     

The Pure Theory of Law and the Fragile New Democracies of the Developing World

Political and socio‐economic distress invariably accompanies democratic orders in Nigeria. Usually, the people turn to the military, justifying this by reference to a whimsically transferable peoples’ will as Grundnorm (a basic norm, order or rule that forms an underlying basis for the legal system). However, though ‘We the People’ is contained in the Preamble, it is dangerous to so situate the Grundnorm in the will of the people other than that will expressed by them in the Constitution. That said, the Grundnorm is still, for juristic and jurisprudential reasons, to be found in the Preamble.

For new democracies, the Nigerian example illustrates how not to employ the Grundnorm theory if democracy is to survive.     

Instruction on the Procedure for Applying Compulsory Treatment and Other Medical Measures to Mentally Ill Persons Who Have Committed Socially Dangerous Acts,February 14, 1967 (1)

In accordance with the criminal legislation, the following compulsory medical measures may be applied to mentally ill persons who have committed socially dangerous acts:

(a) commitment to a general psychiatric hospital;

(b) commitment to a special psychiatric hospital.     

An Economic Theory of Court Delay

Delay undermines the performance of courts around the world. Its implications and possible solutions, however, are not so widely understood. The assessment of the efficiency of delay as a rationing mechanism requires a general theory, which looks at the effect on the number of conflicts, suits, settlements and trials. The outcome is somewhat disturbing: delay may be socially beneficial, but the assumptions seem prohibitively strict. The policy implications are that court delay is best reduced via increases in court fees and improvements in legislative and judicial quality.     

Review notice: The Old Bailey proceedings online

Roman Statutes. M.H. CRAWFORD (ed.). Bulletin of the Institute of Classical Studies Supplement 64, 1996. 2 volumes. I: xxviii + 553; II: vii + 322 + 13 half‐tone plates + 14 figures. £90 hb (the set). ISBN 0 900587 69 5.

Greek Law in its Political Setting: Justifications not Justice. L. FOXHALL and A.D.E. LEWIS (eds.). Oxford. 1996. Clarendon Press. £25 hb.

The Early History of the Law of Bills and Notes: A Study of the Origins of Anglo‐American Commercial Law. JAMES STEVEN ROGERS. Cambridge. 1995. University Press. xxv + 267 pp. (inc. Index). £35/$59.95 Hb. ISBN 0 521 44212 5.

The Paths to Privity: The History of Third Party Beneficiary Contracts at English Law. VERNON VALENTINE PALMER. San Francisco. 1994. Austin &; Winfield. 250pp. (inc. Index). £58.50/S64.95 hb/£35.95 pb. ISBN 1 880921 16 2/1 880921 15 4.

Leading Cases in the Common Law. A.W.B. SIMPSON. Oxford. 1995. Clarendon Press. xxi+311pp. (inch Index). £25 hb. ISBN 0 19 825852 6. Oxford. 1996. Clarendon Press. xxi+311pp. (incl. Index). £16 pb. ISBN 0 19 826299 X.

Justice et Institutions Françaises en Belgique (1795–1815). ACTES DU COLLOQUE TENU A L'UNIVERSITÉ DE LILLE II LES 1, 2 ET 3 JUIN 1995. Hellemmes: Espace Juridique, Ester, 1996. 395 pp.(incl. Index). FF 150, ISBN 2 908510 23 5; ISSN 1159–487X.

The Logic of Women on Trial: Case Studies of Popular American Trials. JANICE SCHUETZ. Carbondale and Edwardsville. 1994. Southern Illinois University Press, x + 260pp (incl. Index). No price given. Pb. 0–0893–1926–8     

Language-bound terms—term-bound languages: the difficulties of translating a national civil code into a lingua franca

The present paper—taking the example of the English translation of the Hungarian Civil Code of 2013—aims to give an overview on the legal and terminology-related challenges and pitfalls that might occur during the process of translating a civil code with civil law traditions into the language of the common law world. An attempt is made to categorise terminology-related conceptual problems and elaborate how the different types of translation methods (functional equivalence, paraphrasing and neologism) could be applied; moreover, how a kind of legal-linguistic checks-and-balances can be achieved through the well-dosed combination, having also the ratio of similarities to differences (SD-ratio or SD-relationship) of legal concepts behind the respective terms in mind. Legal translators must act beyond the role of a simple translator: they must be comparatists, being aware of the legal origin of the relevant concepts and using the methods of comparative private law and translation studies at the same time, since both law and language are system-bound and are heavily influenced by the cultural and social environment. The authors strive to identify the significance of those problems (and possible solutions) from the perspective of how language-related aspects can perform some fine-tuning on the comparative methodology and findings, whether they are barriers only or provide also an opportunity to verify or refute prima facie comparative results. Comparative law—no doubt—supports legal translation, but their relationship is reciprocal: legal-linguistic subjects and problems emerging in the course of legal translation supply valuable feedback and further sources of inspiration.

     

Cost-benefit analysis for global public–private partnerships: an evaluation of the desirability of intergovernmental organizations entering into public–private partnerships

This paper explains the use of cost-benefit analysis for the evaluation of global public–private partnerships that combine international intergovernmental organizations with national governments, businesses, and the non-profit organizations of civil society. The partnerships allocate resources to projects that are socially desirable from an international perspective, yet without the global partnerships will not be performed. Cost-benefit analysis can identify and compare the social and the private costs and benefits of the projects, thereby identifying cases where global public–private partnerships will provide socially desirable results when markets alone will not. Cost-benefit analysis can assess the necessity and the sufficiency of strategies proposed by the partnerships. The paper discusses modifications to cost-benefit analysis required for its use in evaluations of the global public–private partnerships, explaining the need for market-centered valuations, but also explaining the role of alternative social valuations.     

Learning Pain: Poetry in Emotion

This paper asks the question; is a poetic response to law and suffering legitimate? It reflects upon Robert Duncan's poem Persephone and imagines the (dis)connections between law, literature and poetry. It muses upon the “Trauma” of the poem and the “wound” considered in the context of both public and private law and considers the politics of sentimentality, dominant within the political agenda of the 21st century. The article uses the poem as a lens which reveals that the law fails to address the question of suffering as the wound of the poem is used by the poet as a pedagogical argument to teach us about loss.

     

The lecturer,the law student and the transmission of legal culture

Abstract

This paper presents a critique of recent work on the culture of the law school and its inhabitants. It examines two questions raised particularly by the work of Professor Fiona Cownie¹, one about staff and the other about students. Cownie detects a shift to greater eclecticism in the general intellectual climate of the legal academy and this paper questions whether this new stance is intellectually coherent. The second issue considered is the extent to which certain features of legal academic culture; its theoretical stances, the skills and values taught, persist and have an enduring effect on law students after they have left the academy and moved to the world of work.