Form and Formalism: The View from Legal Theory

Abstract. The article considers Robert Summers' new book ( Summers 2006 ), in the context of Summers' earlier work and the role of form and formalism in other jurisprudential discussions. While accepting the value of a form‐centered approach to studying law, the article questions Summers' claim that his approach is clearly superior to (and not merely complementary with) traditional analytic theories, like those of Hart and Kelsen. The article also suggests that the book's discussion of form in contract and commercial law is somewhat disappointing, given Summers' expertise in this area, and the many difficult form‐related questions that area raises.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

Tocqueville's Question. The Role of a Constitution in the Process of Integration

Starting from the contemporary processes of “fragmentation of societies” (pluralization of individual lifestyles, the increasing ethnic‐cultural diversity, de‐solidarity, the melting away of political loyalties) and of “dissolution of the nation” (the erosion of the monopoly of the state, economic globalization), the author examines Tocqueville's question about what holds society together. This problem of integration is analysed in the perspective of social and legal sciences. Accordingly, the author stresses that solutions to such a problem should come from a constitutional theory which is open to debates and answers developing in other disciplines, thus obtaining relevant information concerning the role of law and of constitution for integration. 1 Abstract by Antonino Rotolo.
     

Alexy's Thesis of the Necessary Connection between Law and Morality

This paper criticizes Alexy's argument on the necessary connection between law and morality. First of all, the author discusses some aspects of the notion of the claim to correctness. Basically, it is highly doubtful that all legal authorities share the same idea of moral correctness. Secondly, the author argues that the claim to correctness is not a defining characteristic of the concepts of “legal norm” and “legal system”. Hence, the thesis of a necessary connection between law and morality based on such claim cannot be accepted. 1 Abstract by Antonino Rotolo.
     

The Constitutional State and its Reform Requirements

In the first part, the author characterizes the fundamental contents (principles) of the constitutional state. In the second part, he describes the necessary reforms both at the level of the national constitutional state and at the global and humanity level. In the third part, he examines the methods and procedures of reform in the constitutional state, analysing: a) constitutional formation or complete revision; b) constitutional amendments or partial revision; c) parliamentary constitutional legislation; d) constitutional interpretation; e) government and non‐governmental “outlook” commissions. 1 Abstract by Giorgio Bongiovanni.
     

Dignity as (Self‐)Determination: Hopi Sovereignty in the Face of US Dispossessions

In 2013, the Arizona Snowbowl Ski Resort began spraying artificial snow made from reclaimed wastewater on Arizona's highest peak, a place the Hopi people call Nuvatukya'ovi, “Snow‐on‐top‐of‐it.” As one of the Hopis’ most sacred places, the home of the katsinam and the southwestern boundary marker of their aboriginal territory, the Hopi have fought for decades to stop development of the ski resort, which today sits on US Forest Service land. Viewing the history of this dispute through the lens of Atuahene's notion of a “dignity taking,” this article argues that despite never having been relocated, the indignities that the Hopi have suffered by US dispossessions of much of their aboriginal territory are the product of a series of bureaucratic sleights of hand that only bear the mark of legality if one ignores history and denies the enduring right to self‐determination and sovereignty that Hopi have continuously claimed with regard to the totality of their aboriginal land.

Yuuyahiwa,

Ayamo Nuvatukya'ove'e.

Oo'oomawutu,

angqw puma naayuwasinaya,

pewi'i.

They are preparing themselves [for a journey],

Over there at the snow‐capped mountains [San Francisco Peaks].

The clouds,

From there, they are putting on their endowments [of rain power],

To come here.

A Hopi katsinam song recalled by Emory Sekaquaptewa (from Sekaquaptewa and Washburn, 2004, 468)

     

The effects of specialized probation and recovery management checkups (RMCs) on treatment participation,substance use,HIV risk behaviors,and recidivism among female offenders: main findings of a 3-year experiment using subject by intervention interaction analysis

Objectives

To examine the effects of specialized probation and recovery management checkups (RMCs) on participation in substance use treatment, substance use, HIV risk behaviors, and recidivism.

Methods

Women (n?=?480) released from the Cook County Jail’s Department of Women’s Justice Services were randomly assigned to either an RMC or control condition and interviewed quarterly for 3 years (greater than 90% completion per wave). At the beginning of each quarter, women were classified as currently on probation (n?=?1984) or not (n?=?2516). Current probation (subject) and experimental condition (intervention nested within probation status) at the beginning of the quarter were used to predict outcomes in the next quarter. Data included self-reports, urinalysis findings, and county and state arrest records.

Results

In the quarter after being on probation (or not), women offenders reported higher rates of participation in substance use treatment and recovery support services, as well as lower rates of substance use and HIV risk behaviors. Nevertheless, they were more likely to commit crimes and be rearrested or reincarcerated. During quarters when the women were not on probation, RMCs were associated with significant increases in participation in substance use treatment and significant reductions in substance use and HIV risk behaviors. However, RMCs had no additional quarterly benefits when women were on probation. Higher levels of substance use treatment, self-help engagement, and reduced substance use predicted reduced recidivism.

Conclusions

This study demonstrates the effects of specialized probation and RMCs (when not on probation) on favorable outcomes for criminally involved women with substance use disorders.

     

Gallery Districts of Barcelona: The Strategic Play of Art Dealers

This article focuses on Barcelona's art market to explore the underlying factors behind the clustering of art dealers in several of the city's districts. Drawing upon quantitative and qualitative data, the article analyzes how such clustering reveals a strategic action in the sense attributed to it by Crozier and Friedberg (1981 Crozier, Michel and Friedberg, Erhard. 1981. L’acteur et le système, Paris: Éditions du Seuil.  [Google Scholar]). Gallery districts are not a reflection of structural factors (economic, urban development-related, or social) but are the result of a combination of strategic choices—either individual or collective—which explain the permanence of leading gallery districts or the emergence of new ones.     

Law school accreditation in the New Independent States of the former Soviet Union: what steps for the future?

Legal education reform has recently emerged as a key component in the rule of law promotion in the former Soviet Union republics,1 1. See Jane M. Picker & Sidney Picker, Jr, Educating Russia's future lawyers—any role for the United States? (2000) 33 Vanderbilt Journal of Transnational Law 17, 18–19, arguing that the core building block of the rule of law rests on legal education. See John M. Burman, The role of clinical legal education in developing the rule of law in Russia (2002) Wyoming Law Review at 90, 101, stating that reform of the legal education is the most effective way of creating a culture of law. See Peter J. Sahlas & Carl Chastenay, Russian legal education: post-communist stagnation or revival? (1998) 48 Journal of Legal Education 194 at 194, arguing that “a system of legal education can do more than teach the society's rules to successive generations: it can inspire values of justice and promote social progress”. See also Mark Dietrich, Three foundations of the rule of law: education, advocacy and judicial reform, in: Law in Transition (London, EBRD, Autumn 2002), at p. 57, available at: http://www.ebrd.com/ pubs/law/lit/english/aut02.pdf. The author points out that reform of legal education is the single most important reform to be undertaken in the NIS region. If law students are not taught how to think critically, question authority and be guided by the ethical values of the profession while in law school, it is difficult to expect that they will become honest advocates, judges or prosecutors in the future. View all notes now sovereign and independent states collectively known, for the purpose of this paper, as the New Independent States (NIS). Scholarly articles and international forums2 2. See Europe and Central Asia Division of the Legal Department, World Bank, Selected Issues (2001) Challenges and Strategies. The World Bank Forum on Legal and Judicial Reform in Eastern Europe and the Former Soviet Union 33; see also Dietrich, op. cit., at 58. View all notes suggest that legal education reform could be advanced by developing and implementing accreditation procedures for law schools, updating law school curricula, establishing transparent and rigorous grading standards, and retraining the law faculty. This paper discusses just one of these measures, namely the development and implementation of quality evaluation and accreditation procedures for law schools in the NIS region. In order to explore this issue in detail, the paper has been structured into six parts.

?Part I provides a brief overview of legal education in the Soviet Union, thus placing the issues tackled in this paper into a historical perspective. Part II describes the main changes occurring in the higher education system in general and legal education in particular in the NIS region after 1991, emphasising new challenges that privatisation of the higher education sector posed to the quality of legal education, thus triggering an urgent need for quality-assurance and accreditation mechanisms. The currently existent NIS practices of licensing, evaluation and accreditation of academic institutions, including law faculties within multi-disciplinary academic institutions, as well as separate law schools, are described in Part III. Parts IV and V adopt a comparative approach to accreditation by providing an overview of accreditation procedures in the United States, and the recent initiative and trends in quality evaluation and accreditation in Western Europe. Drawing upon the information provided in Parts I–V, Part VI offers concrete suggestions and recommendations for improving the implementation of accreditation procedures in the NIS region. The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of either the American Bar Association or the Central European and Eurasian Law Initiative. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the policy of the ABA. Nothing contained in this report is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This report is intended for educational and informational purposes only. Research performed on Westlaw country of West Group. View all notes     

Technology transfer: An overview as related to LDCs

The Technology Transfer issue has aroused much controversy in the last two decades among management researchers. This paper attempts to discuss the problems of Technology Transfer, the debate on this issue and some of the theories concerned. It also presents a suggested theoretical framework to assist the LDCs in determining need for, and receiving of, new technology.     

Privacy in Commonwealth Caribbean law: emerging trends in the protection of sexual citizenship

This article will explore the three recent judgments of Jovil Williams and Jason Campbell v AG of St. Christopher and Nevis & Chief of Police;¹1 Suit No: NEVHC 2013/0120, Williams J, (Supreme Court of St. Kitts Nevis, 21st March 2016) (unreported).View all notes Caleb Orozco v AG of Belize²2 Claim No. 668 of 2010 (Supreme Court of Belize, 10th August, 2016) (unreported).View all notes and Therese Ho vs Lendl Simmons³3 High Court Claim CV.2014-01949 (Supreme Court of Trinidad and Tobago, 26th October, 2015) (unreported) [32].View all notes which have broken new ground in constitutional law and the law of torts concerning the protection of (the right to) privacy. It is argued that these judgments hold substantial promise towards the making of a meaningful sexual citizenship in the Caribbean; a citizenship which protects the sexual autonomy of citizens and prevents or redresses the invasion or breach of these rights.     

Judge or be judged: accepting judicial appointment in an unlawful regime

Judicial independence is generally accepted as a key component of the rule of law. It empowers judges to make unbiased decisions without concern for political repercussions. In countries governed by an unconstitutional, unlawful or corrupt regime, such as Zimbabwe,2 International Bar Association Human Rights Institute, Zimbabwe: Report Highlighting the Critical Situation Faced by Judges and Lawyers in Zimbabwe (2001). View all notes Swaziland,3 International Bar Association Human Rights Institute, Swaziland: Law, Custom and Politics – Constitutional Crisis and the Breakdown in the Rule of Law (2003). View all notes Pakistan4 International Crisis Group, Building Judicial Independence in Pakistan (9 November 2004). Available at: www.crisigroup.org/home/index.cfm?1=1&id=3100, accessed 1 February 2010. View all notes and Fiji,5 International Bar Association Human Rights Institute, Dire Straits: A Report on the Rule of Law in Fiji (2009). View all notes that independence, and in turn the rule of law, is threatened. More particularly, acceptance of judicial office in an unlawful regime could be regarded as making an implicit bargain with the government to recognise its validity.6 See, in relation to Fiji, Chief Justice R. French, Judges in Fiji face ‘interim’ problem, The Australian (Sydney), 2 May 2008. View all notes

This article begins with a discussion of the importance of judicial independence, both from a national and an international perspective. It then examines the standards of judicial integrity and some of the factors that impact upon independence, including appointment and tenure, and the less obvious influence of jurisdiction. The article then moves on to consider the issues arising from acceptance of judicial office in an illegal regime in the context of Fiji, where lawyers and judicial officers have recently been forced to decide whether or not to accept appointment in a regime with an unelected government. After outlining the background to the latest events in Fiji, the article examines the competing considerations and ethical dilemmas involved in deciding whether to accept judicial appointment in an illegal regime. It then goes on to consider the possible repercussions of accepting such appointment from both a disciplinary and criminal perspective.     

Kenya: succession,customary law

This article seeks to explore the idea that a health care professional who becomes aware that a patient has a genetic linked disorder should in some circumstances owe a duty to inform blood relatives of that fact, and that failure to so inform should be redressed through the law of negligence. This is a contention which has appeared in medical literature ¹ 1 Lucassen, A. (2007), Should families own genetic information? Yes, BMJ, 335(July), p. 22. and been the subject of litigation in American jurisprudence. ² 2 Pate v Threlkel (1995) 661 S0 2d (SC Florida); Safer v Puck (1996) 677 2d 1188 (SC, NJ). Given that medical researchers have identified the genetic causes of many human diseases through more sophisticated methods of DNA sequencing, and have confirmed the hereditary nature of many of these conditions, the disclosure of screening results is a serious and contentious issue. This is particularly so given the increasing importance of preventative medicine as a means of dealing with disease. ³ 3 See Seigler, M. (1982) Confidentiality in medicine – a decrepit concept, N‐Engl J Med, 307, p. 1518, where he refers to medicine expanding ‘from a narrow, disease‐based model to a model that encompasses psychological, social and economic problems’. Also note the increasing emphasis now given to the prevention of diabetes and obesity through lifestyle education. The article suggests, by reference to ethical discourse, and particularly Levinas' theory on responsibility, ⁴ 4 See Levinas, E. (1961) Totality and Infinity, trans. A. Lingus 1969 (Pittsburgh: Duquesne University Press); Levinas, E. (1974) Otherwise Than Being, or Beyond Essence, trans. A. Lingus 1981 (The Hague: Martinus Mijhoff). that health professionals do owe a duty of care to a patient's relatives, but that this duty may be discharged in ways which do not necessarily involve the disclosure of the information to those parties, and that it is only in certain, specified circumstances that a duty to disclose the information exists.     

On the New Frontiers of Justice. A Dialogue

Abstract. The dialogue focuses on the book by Martha C. Nussbaum Frontiers of Justice. The discussion covers the major issues treated in the text, including the relationship between the capabilities approach and the theories of Rawls and Sen, nonhuman animals, people with mental or physical disabilities, and transnational justice. * * Abstract by F. Lelli.
     

The Supreme Court and the pledge of allegiance: a hollow victory

In Elk Grove Unified School District v Newdow (Elk Grove),1 124 S. Ct. 2301 (2004). View all notes the Supreme Court, in an 8–0 judgment,2 Justice Scalia chose not to participate in the outcome since he criticized the Ninth Circuit's ruling before it reached the High Court. Elk Grove Unified Sch. Dist. v Newdow, 124 S. Ct. 384 (Mem) (2003). See also Mark Walsh, Scalia: Courts go too far on Church State, Education Week, 22 January 2003, p. 22; Houston Chronicle, Justice decries courts removal of God, 13 January 2003, p. 5. View all notes with three concurrences, upheld the words ‘under God’ in the Pledge of Allegiance. In light of the uproar caused by Elk Grove, this article is divided into three parts. After reviewing the history of the Pledge the second section examines the litigation involving the pledge, including Elk Grove in this regard. The article concludes with brief reflections on the meaning of Elk Grove.     

Police and the War on Women: A Gender-Linked Examination Behind and In Front of the Blue Curtain

The war on women was a term coined during the 2012 election cycle that referred to attempts to pass legislation that would limit women's rights, from control of women's bodies (with a particular focus on birth control, abortion, and the aftereffects of rape) to equal pay for women and their rights in the workforce (M. E. Gilman, 2014 Gilman, M. E. (2014). Feminism, democracy, and the “war on women.” Law & Inequality, 32, 1–30. [Google Scholar]). One arena in which evidence of such a war's impact on women may be assessed is behind and in front of the blue curtain of policing. To what extent, then, does policing reflect culture that supports and facilitates a war on women? We review arrest trends for female offenders, discuss police responses to crimes against women, and examine policies and practices that may improve understanding of the criminal justice system's role in this war. We find evidence of changes in police perspectives, actions, and policies toward women as perpetrators and victims of crime. Specifically, at the same time that police undertook more aggressive enforcement efforts against certain types of female offenders, resulting in trends for women that were often the reverse of those for men, there was an absence of similar attention to laws and policies protecting women as victims.     

Sexual Orientation and the Effects of Intimate Partner Violence

Studies have demonstrated a relationship between intimate partner violence (IPV) and depression and other mental health issues such as suicidal behavior and posttraumatic stress disorder. Despite the breadth of the literature, there is a dearth of information specifically regarding the effects of IPV in same-sex relationships. Information regarding the prevalence of substance abuse and health issues in non-heterosexual IPV victims when compared to heterosexual IPV victims will be extremely helpful in developing tailored victim services to sexual minorities. This study uses the National Violence Against Women Survey to examine hypothesized relationships between IPV, its effects, and sexual orientation. Given the higher prevalence rates of IPV in same-sex relationships (Messinger, 2011 Messinger , A. ( 2011 ). Invisible victims: Same-sex IPV in the National Violence Against Women Survey . Journal of Interpersonal Violence , 26 , 2228 – 2243 .[Crossref], [PubMed], [Web of Science ®] , [Google Scholar]), logistic regression models are used to test the hypotheses that non-heterosexual victims of IPV will have higher rates of depression, substance use, and health issues.     

Evaluation technology transfer: Some problems and solutions

Evaluation of technology transfer is an important part of the total transfer process. Sound results require a practical approach, which avoids use of the research model. The evaluation process is often expensive and time consuming. However, good evaluation will improve:motivation,knowledge,decisions, andaccountability. Evaluation must be based on use of reliable data. Technology transfer evaluation data can be classified — based on accuracy — aslow,medium, orhigh order — data. Evaluation problems can be designated — according to origin — as being related tonew information,human elements, orinstitutional structure. In each area, the more common evaluation problems can be solved with careful attention to detail. Technology transfer evaluation can be a complicated, but rewarding process. There is nosingle, correct way for Technology Transfer evaluation, but rather there is a wide variety of techniques which all have merit, depending on local circumstances.