Defending <Emphasis Type="Italic">Why</Emphasis><Emphasis Type="Italic">Law</Emphasis><Emphasis Type="Italic">Matters:</Emphasis> Responses to Commentaries

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge (only) on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.     

The Uncertainties in the Rule in <Emphasis Type="Italic">Re Hasting</Emphasis>-<Emphasis Type="Italic">Bass</Emphasis>

Writing extra-judicially, Sir Robert Walker once commented that ‘the decision in Re Hastings-Bass must be seen in its judicial context. It cannot be regarded as giving a “carte blanche” excuse to every body of trustees who have made a mistake. The law on the issue now stands in a state of some uncertainty’ (Walker, The limits of the principle in Re Hastings-Bass, P.C.B 226, 2002). There is no doubt in the minds of most commentators and, indeed those persons seeking to invoke the rule in Re Hastings-Bass on behalf of their clients, that much clarification is needed as to the proper scope of the rule. Recent judicial trends suggest that, not only is the rule in Hastings-Bass being applied at such an unprecedented rate with very little scrutiny from a court beyond that of the High Court, it is also showing signs of plaguing the wider fiduciary community. As the opportunity for the Court of Appeal, and indeed the Supreme Court, to exercise some judicial scrutiny of the rule may not be that far away, this article highlights some of the present uncertainties with the rule in Re Hastings-Bass.     

Comparing Effect Sizes in Follow-Up Studies: ROC Area,Cohen's <Emphasis Type="Italic">d</Emphasis>, and <Emphasis Type="Italic">r</Emphasis>

In order to facilitate comparisons across follow-up studies that have used different measures of effect size, we provide a table of effect size equivalencies for the three most common measures: ROC area (AUC), Cohen's d, and r. We outline why AUC is the preferred measure of predictive or diagnostic accuracy in forensic psychology or psychiatry, and we urge researchers and practitioners to use numbers rather than verbal labels to characterize effect sizes. Strictly speaking, d values pertain only to variables scored on an interval scale. When the nondichotomous variable is ordinally scaled, r or AUC should be used. Nevertheless, the values in Table 1 allow one to compare the relative magnitudes across studies that have reported any of the three effect size measures.     

Reflections on <Emphasis Type="Italic">Prince</Emphasis>, Public Welfare Offenses, <Emphasis Type="Italic">American Cyanamid</Emphasis>, and the Wisdom of the Common Law

The fundamental requirement of Anglo-American criminal law is that crime must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus reus. And yet, the criminal law is shot through with discordant lumps of strict liability—crimes for which no mens rea is required. Ignoring the conventional normative objections to this aberration, I distinguish two different types of strict criminal liability: the type that arose at common law and the type associated with the public welfare offenses that are the product of twentieth and twenty-first century legislation. Using famous cases as exemplars, I analyze the two types of strict liability, and then examine the purposes served and incentives created by subjecting individuals to strict liability. I conclude that common law strict liability is rational in that it advances the purposes of the criminal law, while the public welfare offenses are at best pointless and at worst counterproductive. I suggest that in this respect the common law contains more wisdom than the results of the legislative process.     

<Emphasis Type="Bold">Grundbuchsrecht</Emphasis>

Rechtsprechung

Grundbuchsrecht     

<Emphasis Type="Bold">MRG</Emphasis>

Rechtsprechung

MRG     

<Emphasis Type="Bold">WEG</Emphasis>

Rechtsprechung

WEG     

<Emphasis Type="Bold">WEG</Emphasis>

Rechtsprechung

WEG     

<Emphasis Type="Bold">MRG</Emphasis>

Rechtsprechung

MRG     

<Emphasis Type="Bold">ABGB</Emphasis>

Rechtsprechung

ABGB     

<Emphasis Type="Bold">Verfahrensrecht</Emphasis>

Rechtsprechung

Verfahrensrecht     

<Emphasis Type="Bold">MRG</Emphasis>

Rechtsprechung

MRG     

<Emphasis Type="Italic">The Lesser Evil Dilemma for</Emphasis> Sparing Civilians

The rule I call ‘Civilian Immunity’ – the rule that prohibits targeting civilians in war – is the heart of the accepted jus in bello code. It prohibits targeting (viz., intentionally killing) civilians in a wide variety of war circumstances. Seth Lazar's brilliant book, Sparing Civilians, attempts to defend Civilian Immunity. In this essay I show, first, that his ‘Risky-Killing based argument’ fails to provide civilians with the robust protection Sparing Civilians promises. I argue, secondly, that the moral framework that Sparing Civilians employs, a moral framework that centralizes the Deontological Clause (stating that one's intentional killing is worse than enabling others to kill), leaves the immunity of civilians against Leaders unexplained.     

Twenty-Five Years of <Emphasis Type="Italic">Social Science in Law</Emphasis>

In this essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed—sometimes radically—are the substantive legal questions on which social science has been brought to bear.     

Habeas Corpus as <Emphasis Type="Italic">Jus Cogens</Emphasis> in International Law

For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts.     

<Emphasis Type="Italic">Commentary</Emphasis>: A Critical Review of Published Competency-to-Confess Measures

The development of standardized assessments for competency-to-confess evaluations has remained largely neglected for the last several decades. Groundbreaking research was conducted on Miranda waivers during the late 1970s, but researchers have failed to sustain programmatic research. This critical review focuses on four published Miranda measures (Comprehension of Miranda Rights, Comprehension of Miranda Rights-Recognition, Comprehension of Miranda Vocabulary, and Function of Rights in Interrogation). When evaluated by contemporary standards, the validation of these measures is very limited. Major improvements are needed for interrater reliability, test–retest reliability, content validity, construct validity, and criterion-related validity.     

Policing through misunderstanding: <Emphasis Type="Italic">insights from the configuration of financial policing</Emphasis>

How does a configuration of policing work regardless of the differences among its constituent members, who may relate to various social fields and range from for-profit organizations to law-enforcement and other state agencies? The article aims at providing some of the answers to this critical question in the light of financial policing, at the interface between the fields of finance and security. With the emphasis on money laundering and terrorist financing, financial policing resonates with other policing configurations that are ‘partly detached from the institutions of the police and start referring to a more general associative practice of assembling risk knowledge, technologies and agencies into networks that govern through rendering and distributing risks’ (Huysmans 2014). The paper argues that everyday financial policing is based on a misunderstanding, as both its current condition of possibility and the fundamental structure of communication between the involved parties. This focus on misunderstanding contributes to question traditional interpretations of (national and/or international) partnership against policing-related public problems. To help understand the paradoxical and controversial productivity of misunderstanding as a sine qua non condition of policing, the article draws on a transatlantic perspective with empirical research in the European Union Institutions, the United Kingdom and Canada.