Law Enforcement and the Rights of the Accused: Are the Police Getting a Bad Rap?

Nationwide, law enforcement professionals have endured increasing scrutiny regarding their treatment of custodial suspects and their alleged abridgement of suspects’ Constitutional rights. At the same time, in the interests of community safety, many members of the public fully expect police officers to function efficiently in arresting and facilitating the prosecution of likely perpetrators. These perspectives reflect due-process and crime-control models respectively. Very little is known, however, about how law enforcement professionals actually view the rights of the accused when not acutely immersed in the cross-currents of public opinion. Using an anonymous survey, the current investigation addresses both Miranda rights as well as the European Union’s (EU) much more comprehensive approach to the rights of the accused. In general, this sample of 209 urban police officers favored protections of criminal suspects that went considerably beyond Miranda safeguards.     

A Separate Peace? The Politics of Localized Law in the Post‐Revolutionary Era

Law is often seen as peripheral to Southern life before the Civil War, and the South as an outlier in the American legal history of that era. In The People and Their Peace (2009), Laura Edwards demonstrates the profoundly legal nature of Southern society and takes an important step toward integrating the legal history of the South with that of the nation. Edwards identifies two dueling legal cultures in North and South Carolina between 1787 and 1840—the law of local courts, which she terms localized law, and the state law of professionalized lawyers and reformers. She argues that white women, slaves, and the poor fared better in localized law—which was based on notions of popular sovereignty and the flexible rubric of restoring “the peace”—than in state courts, which were steeped in a national culture of individual rights that led to more restrictive results. This essay questions Edwards's dichotomy between local law and state law and her depiction of the popular content of localized law, while building on Edwards's innovations to suggest a new direction for Southern legal history.     

The Development of EU Case‐Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I'm Sixty‐Four’

This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

Mutual Trust and Cross-Border Enforcement of Judgments in Civil Matters in the EU: Does the Step-by-Step Approach Work?

Netherlands International Law Review - Mutual trust is one of the cornerstones of cooperation in the field of European Union private international law. Based on this principle the rules on the...     

Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

The way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case-law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only 'new-ish governance'. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non-governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.     

Philosophy in Law? A Legal‐Philosophical Inquiry

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it.     

Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan

Drawing on ethnographic fieldwork in Sudan, this article illuminates the consequences of human rights educational workshops as a form of humanitarian assistance in war‐ravaged areas. These projects are built on flawed assumptions about Sudanese politics and about the likelihood that human rights education empowers the war‐ravaged poor. The beneficial impacts of human rights discourse stem from its side effects, which fulfill urgent and symbolic needs, and not from the core content of human rights. The case of an authoritarian regime exposes an alternative site of rights promotion, outside the established or struggling democracies where most literature on rights resides. Bridging the literature on rights in Western, democratic contexts and on human rights in Africa, this article argues that law is not enough—and is potentially dangerous—in the insecure and impoverished areas where the international aid community has been encouraging it to flourish.     

European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?

Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.     

A Duty‐Free Europe? What's Wrong with Kochenov's Account of EU Citizenship Rights

This article disputes the recent argument of Dimitry Kochenov advocating an ‘EU Citizenship without Duties’. His thesis rests on an untenable form of philosophical anarchism that overlooks the role played by our political obligations to state structures in securing rights. At best, his argument suggests a ‘thin’ form of EU citizenship that allows European citizens to choose which of the Member States they wish to become morally obliged to. A ‘thicker’ form of EU level citizenship could only arise by creating civic obligations at the EU level, the position he rejects. To the extent certain Court of Justice judgments in this area reflect parallel reasoning to Kochenov's, they too suffer from a similar failure to appreciate the role of civic duties to particular Member States (or, eventually, the EU) in creating and securing the status of citizens as equal rights bearers.     

The European Union Post‐Brexit: Static or Dynamic Adaptation?

The choice facing the leaders of the European Union, after Brexit, is between a static adaptation, leaving the current approach to integration essentially unchanged, and a dynamic adaptation, which recognises the need for radical changes. Dynamic adaptation requires institutional leadership—something apparently incompatible with the basic principle of the equality of all the Member States. The clearest indication of a deficit of leadership is the failure to define the real purpose of the collective activity. This failure is at the root of Brexit, as may be seen from the explicit rejection of the indefinite goal of ‘ever closer union’ by the British prime minister in November 2015. An alternative approach to European integration finds a good theoretical foundation in Buchanan's theory of clubs. The essential principle of a functional organisation at supranational level is that activities would be selected specifically and organised separately. A strictly functional approach to integration could revive an interest in political union in the form of a confederation. As Tocqueville had clearly understood long ago, the weakness of confederations increases in direct proportion to the extent of their nominal power. What is most important today is to distinguish between the general idea of European integration and one particular implementation of that idea, such as the European Union.     

Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.     

How Do Police Respond to Stalking? An Examination of the Risk Management Strategies and Tactics Used in a Specialized Anti-Stalking Law Enforcement Unit

How do police respond to and manage complaints of stalking? To answer this question, we conducted a 3-phase study. First, we reviewed the literature to identify risk management tactics used to combat stalking. Second, we asked a group of police officers to review those tactics for completeness and group them into categories reflecting more general risk management strategies. The result was 22 categories of strategies. Finally, we used qualitative methods to evaluate the files of 32 cases referred to the specialized anti-stalking unit of a metropolitan police department. We coded specific risk management tactics and strategies used by police. Results indicated that a median number of 19 specific tactics from 7 general strategies were used to manage risk. Also, the implementation of strategies and tactics reflected specific characteristics of the cases (e.g., perpetrator risk factors, victim vulnerability factors), suggesting that the risk management decisions made by police were indeed strategic in nature. Qualitative analyses indicated that some of the strategies and tactics were more effective than others. We discuss how these findings can be used to understand and use stalking risk management more generally, as well as improve research on the efficacy of risk assessment and management for stalking.     

We're Still Taking X‐Rays but the Patient is Dying: What Keeps us from Intervening More Quickly in Resist‐Refuse Cases?

Professionals frequently lament the fact that the dynamics of resist‐refuse cases are often entrenched before the family receives effective intervention. Dysfunctional behavior patterns can become entrenched, with severe impairment of children's ability to function. Assessment is a critical component in the process of assisting families, but can come to so dominate the process that the situation is unrecoverable once the assessment is completed and meaningful interventions begin. The authors will describe commonly encountered obstacles to early intervention in resist‐refuse cases, ranging from systemic stressors to the persistence of inaccurate beliefs and information and practices that undermine accountability. Practical strategies, including a broader conceptual model, integrating assessment into intervention, encouraging lawyers and courts to take earlier action, and suggestions for future professional development will be addressed.     

Robotisation of the manufacturing industries in the EU: Convergence or divergence?

This paper investigates whether convergence or divergence of robot densities in the manufacturing industries of 24 EU countries occurred over the period from 1995 to 2015. An answer to this question permits immediate conclusions with regard to the success of convergence of labour productivities within the manufacturing industries of the EU, since it is expected that the use of robots will contribute to the growth of labour productivity. The empirical analysis is based on the robot data of the International Federation of Robotics and uses the convergence testing approach proposed by Rodrik (Q J Econ 128(1):165–204, 2013). Taking all results together, empirical evidence points to non-convergence of robot densities for a first period from 1995 to 2005, while there is relatively fast conditional as well as unconditional convergence for the second period from 2005 to 2015.