Inequality,Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACT

In 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.     

Donald Davidson and section 2.01 of the model penal code

Abstract

In a 1967 article that is considered a classic of criminal justice scholarship, Abraham Blumberg portrayed defense attorneys for accused offenders as more responsive to the demands of the court entourage for smooth and expeditious functioning than to the needs of their clients for a stalwart representation. The article suggests that Blumberg's view, while provocative and with a considerable element of accuracy, may have reflected a somewhat jaundiced and overstated perspective when he was on the verge of leaving law practice for academia. The article also speculates about the current accuracy of Blumberg's observations.     

European human rights law and the United Kingdom—A note

This article asserts that established concerns about access to, and widening participation in higher education, are now reflected in interest around retention. Those law schools with inclusive admissions policies and widening participation practices face a number of challenges around the financial and human costs of poor retention. Most of these law schools fall within the “new university” sector.

This article argues that poor retention among first‐year law students often reflects a lack of engagement. This lack of engagement exists in two key relationships; first that of between students and the teaching and learning structures of their law school and university, and second between first year law students and many of the staff who teach them. It is argued that this lack of engagement reflects a clash of cultures, first between the requirements and structures of the law school and the everyday life experience of our students, and second between ourselves as teachers and our students.

The utilisation of aspects of the Oxbridge tutorial model of higher education together with an appropriate use of new technology is suggested as a response to this cultural clash and as a way of increasing engagement with our students.

In support of these arguments, the article refers extensively to the evidence presented to the House of Commons Education and Employment Committee hearings on retention in higher education, and to the Committee's conclusions.     

Role-taking and restorative justice: Social practices of solidarity and community in Shakespeare's measure for measure

This article examines to what extent role-taking inspired characters in Shakespeare's play Measure for Measure to new modes of consciousness and concomitant social practices of restorative justice. The play's main character, Duke Vincentio, engages in a series of role-taking episodes through which he undergoes a self-transformation. He subsequently enacts the social practice of restorative justice. However, the play is neither a paragon case of self-transformation nor of restorative justice, especially since (1) manipulation and power are employed in the reintegrative shaming ceremony; (2) some characters are stigmatized and humiliated; and (3) the Duke still practices duplicitous, power-based, and punitive measures. Nevertheless, through the process of self-discovery and the recognition of others as like himself, the Duke reconceives his kingly role from that of an executor of law violators to that of a mediator of troubled relationships. The Duke's character reflects in part the cultural contradictions and social transformations ongoing in Shakespeare's Renaissance England.     

Sexual exploitation of children in europe: Child pornography

Abstract

Summary: This article is taken from a report entitled: Rhetorics and Realities: Sexual Exploitation of Children in Europe, of a study funded by the European Commission under the STOP Programme. It begins by re-visiting the knowledge base of child pornography and addresses a range of issues including: children's access to pornography; law enforcement and European policy. The article concludes with a number of pertinent questions which need both attention and answers.     

Living on the Boundaries in America

Abstract

In this article I examine marginalized youths' ideas about the United States, the law, and police. My interpretive analysis is based upon in-depth, unstructured interviews with juvenile parolees living in poverty in a large southwestern city. In general, these parolees could be described as uneducated, unemployed, non-white, youth gang members. Through an examination of the youths' narratives and stories about America and its legal authorities, I attempt to illustrate how their ideas can be understood as evolving from their structurally based interactions. I present the general themes of the marginalized youths' legal and political consciousness and attempt to show how this consciousness flows from their hostile interactions with legal and conventional authorities. Ultimately, I suggest that the contrast between the youths' social justice ideals and the reality of their lives on the margins influences how they think about America, law, and the police.     

Government and education news

Abstract

FOR EIGHT years Cornell's Legal Information Institute has offered online law courses to students at other US law schools. Using a paced asynchronous approach, with streaming audio linked to referenced Web materials, interactive problems, online discussion/ and a series of written exercises, the courses offer a successful model of how law schools can pool teaching resources and students to enrich curricula. This article reports on and explains the choices, challenges, student response, and educational outcomes of this ongoing experiment, organised around ten frequently asked questions. It also ventures some cautious conclusions about the near‐term prospects for distance learning in US legal education, noting both inhibiting forces, including importantly constraints imposed by accreditation rules, and recent grounds for optimism.     

Fundamental rights in the EU after Kadi and Al Barakaat

This article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.     

The politics of race and juvenile justice: The “due process revolution” and the conservative reaction

Through the prism of race, this article analyzes the social structural and political context of juvenile justice law reforms over the past half century. Throughout the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on recalcitrant southern states that still adhered to a segregated Jim Crow legal regime, and these norms provided the impetus for the Supreme Court's juvenile court “due process” decisions in the 1960s. The article then analyzes sociological, criminological, racial factors, media coverage, and political dynamics of the 1970s and 1980s that contributed to the “get tough” legislative reformulation of juvenile justice policies in the 1990s. During this period, conservative Republican politicians pursued a “southern strategy,” used crime as a code word for race for electoral advantage, and advocated “get tough” policies, which led to punitive changes in juvenile justice laws and practices and have had a disproportionate impact on racial minorities.     

Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

Pattwena of harm: An analysis of gender and defamation

This article explores whether the law of defamation is gender‐specific. Through a quantitative and historical analysis of libel and slander cases, the study indicates that when women brought actions against those who assaulted their reputations their likelihood of being awarded judicial remedy was unalterably linked to their sexual identity. The study examined 278 appellate cases brought by both male and female plaintiffs during two decades in United States history when emergent women's rights movements were pronounced, the late 19th century and the mid‐20th century.     

Predators

ABSTRACT

The article critically examines Washington State's Predator Law (1990). The most controversial part of the law provides for the indefinite civil commitment of “sexually violent predators.” Under the legislation, husbands who victimize their wives and children cannot be defined as predators, I argue that the social construction of predators as sick strangers is an ideological construct. This non-conspiratorial construct diverts attention from the fact that male intrafamilial violence is by far the greatest threat to the safety of women and children. These diversionary tendencies in the predator discourse constitute a hitherto scarcely publicized backlash against feminist arguments about the need for criminal laws that work in the interests of all women and children.     

Revelation and Rhetoric: A Critical Model of Forensic Discourse

Over the past thirty years or so, theoretical work in such fields as legal semiotics and law and literature has argued that the legal process is profoundly rhetorical. At the same time, a number of communication-based disciplines such as semiotics, sociolinguistics and linguistic anthropology have provided, particularly in interdisciplinary combination with law, a wealth of empirical evidence on, and insight into, the micro-contexts of language and communication in the legal process. However, while these invaluable nitty-gritty analyses provide empirical support for a rhetorical thesis, work in these areas has tended to ignore rhetoric as an explanatory principle. This article introduces an overarching rhetorical framework for the discursive construction and management of cases in contemporary Anglo-American legal processes. Taking ‘forensic’ as relating to the conduct of cases and ‘discourse’ as semiosis-in-practice, I argue that the practices within which forensic discourse is embedded are not, as the received legal view would have it, aimed at revealing an impartial truth but are deeply rhetorical practices aimed at persuading decision-makers to provide a remedy for a claimed wrong. By looking across forensic texts and contexts, I identify common elements of forensic discourse that can be found both in classical forensic orations and throughout the modern legal process and consider how these intersect with critical forces of agency and structure and the particularities of semiosis in situated context. An awareness of commonalities across forensic discourse can help sharpen our focus on the critical causes and consequences of individual and structural difference and point to consequential suggestions for reform.     

Families in Circle Process: Restorative Justice in Family Law

This article explores the use of “circle process”—a form of restorative justice—in family law and places this effort within a larger movement within the law toward law as a healing profession, or the “comprehensive law movement.” It explores the features and underpinnings of circle process and its relationship to original forms of dispute resolution such as those used in African‐style mediation and indigenous people's dispute resolution in North America. Values expressed by these forms of dispute resolution are argued to be particularly relevant in family law. Finally, it focuses on an innovative and exciting court‐sponsored program begun in Chicago in 2008, using circle process with families in conflict, in the Cook County Parentage and Child Support Court. This program's results suggest potential benefits and cautions of using circle process in family law.

Key Points for the Family Court Community:
• Restorative justice, in particular, circle process, can be used to resolve family law cases.
• Circle process widens the group of participants in alternative dispute resolution of family law matters.
• Circle process brings more voices to the table, namely, extended family, friends, and supporters, thus enhancing the group's decisionmaking.
• Judges will want to be sure the families in question are appropriate for circle process before referring them to this method of resolving disputes.
• Circle processes can result in improved communication and relations among families in conflict.
• Circle process reflects the values of “original dispute resolution,” which often in turn reflects ubuntu, the idea that all humankind is interconnected.
• Circle process is part of a greater movement towards law as a healing profession/the comprehensive law movement, which includes therapeutic jurisprudence.

     

Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

Legal education in France and England: A comparative study*

Abstract

Despite the fact that part‐time law students comprise a significant proportion of law undergraduates, there continues to be an absence of legal research that considers the experiences and aspirations of such students as a distinct group. Against this backdrop, it is argued that these students require further research and attention for a number of reasons. First, their location allows a consideration of the extent to which broader governmental objectives for higher education are being met within law schools. Second, the extent of their presence in higher legal education places an important obligation upon law schools to explore the specific needs of this cohort and to consider the extent to which part‐time law students can be legitimately subsumed into the undergraduate cohort in terms of resources and planning. Third, the legal ambitions of many part‐time law students require a fresh consideration of the expectations of the recruiting legal profession and the legal profession's commitment to broadening social diversity within its ranks. Finally, as the experiences of part‐time and full‐time students become closer, a proper analysis of part‐time law students may provide invaluable information as to how law schools could adapt to meet the needs of all students in the future.     

Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the ‘structural congruence’ theory of Herbert Kraus, which long shaped the German reception of EU law. This article recounts Kraus' theory, tracing the struggle for the German legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While Hallstein's constitutionalism is most closely associated with Germany's early Europhilia, even he admitted by 1975 that Kraus had won the day.     

Dr Bonham's Case and ‘void’ statutes

There are two opinions on Coke's remarks in Dr Bonham's Case concerning ‘void’ statutes. Firstly that Coke was assuming a power to declare statutes void as incompatible with some form of higher order law; secondly that Coke was merely asserting a power to interpret statutes. This article suggests that the range of meanings of the word ‘void’ in early-modern English law undermines the foundations of the first position, and that there is no good evidence suggesting a natural law position. Coke's method of statutory interpretation is then explored, showing that his report accords with contemporary jurisprudence on grants of judicial power and parliamentary affirmations of earlier acts, and that the word ‘void’, in this context, had a purely inter partes meaning.     

The Common Law and the Forms of Reasoning

The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning – deduction, induction and abduction – and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.