Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts

Lower national courts are increasingly asked to perform a transnational role, being directly involved in major geopolitical issues such as conflicts, migration, and transnational terrorism. Based on an ethnography of French criminal courts, this article aims to examine this emerging role of national lower courts as transnationalized players. Through an examination of terrorism prosecutions in France and the positions of the different judicial actors, it is argued that lower criminal courts, acting within a transnational context, can offer more robust resistance to states’ policies than supreme courts. This is because of the routine and the banality of their function and the direct interaction with the accused persons coupled with the judges’ own professional ethos and notion of judicial independence. Unlike supreme courts, whose role is more visible, and thus under the constant scrutiny of the political branches of the state, lower courts can operate in a more distant, independent space.     

Treatment of procedural irregularities in Nigerian courts and the need for a principled approach: Yaki v Bagudu (2015) in retrospect

The courts are usually stuck in between the need to do substantial justice to litigants and the strict observance of procedural rules. The article considers this issue in Nigerian legal system using the Supreme Court’s decision in Yaki v Bagudu as a signpost. The article argues that the absence of any clear-cut guidelines on procedural irregularities often leads to legal uncertainty and unpredictability of results. Drawing on experiences from other jurisdictions, the article suggests a principled approach which distinguishes between irregularities affecting the substantive jurisdiction of courts and those which do not as a panacea.     

Policing Medicaid and Medicare managed care: the role of courts and administrative agencies

The much-publicized 2000 case of Frew v. Gilbert, in which a federal judge castigated the State of Texas for deficiencies in its Medicaid program, brought renewed attention to the issue of regulating the quality of care in Medicaid and Medicare HMOs. Frew and other recent cases highlight both the promise and the pitfalls of relying on courts to correct deficiencies in public managed care programs. This article argues that while litigation over inadequacies in Medicare and Medicaid managed care can serve an important signaling function in alerting agencies and legislatures about the need for reform, the role of the courts in policing public managed care is circumscribed by several constraints. Barriers to class action litigation and differences in the institutional capacities of courts and administrative agencies mean that litigation is best viewed as a supplement, not an alternative, to a renewed commitment to strong quality monitoring on the part of Centers for Medicare and Medicaid Services and state Medicaid agencies.     

Braving Jim Crow to Save Willie McGee: Bella Abzug,the Legal Left,and Civil Rights Innovation, 1948–1951

This article considers the role of Bella Abzug, lead counsel for Willie McGee from 1948–1951, in shaping the defense of this Cold War era Mississippi rape case. Representing McGee left an indelible mark on Abzug: she made her first trip south, wrote her first Supreme Court petition, and faced her first death threat. Participation in the Left legal bar—especially the National Lawyers Guild and Left feminist circles—shaped Abzug's legal consciousness as she redirected the McGee defense significantly in 1950. By joining race and sex, Abzug's legal argument zeroed in on the taboo of interracial sexual relations at the heart of Southern rape cases, thereby exposing the innermost sexual color line. She urged the courts and cause lawyers—albeit unsuccessfully—to pursue a more radical civil rights agenda than outlawing public segregation, as ultimately achieved in Brown v. Board of Education (1954), and typically recognized in Cold War civil rights scholarship.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post‐2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re‐allocation of executive authority within the EU (sanctioned in UK v Parliament and Council and Gauweiler v Deutscher Bundestag). The article traces the distinction's roots in legal conceptions that have shaped legal‐administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public‐interest‐regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision‐makers, rather than how courts may review an exercise of discretion.     

Coping with Conway v. Rimmer [1968] AC 910: How Civil Servants Control Access to Justice

The article, based on a review of files in the National Archives, examines the role of civil servants in claims for the suppression of state documents at trial on grounds of public interest immunity (PII). Government lawyers solicited responses from other ministries to the landmark Lords decision in Conway v. Rimmer and coordinated the civil service campaign against this unwelcome judicial intrusion into their professional domain. The decision was seen as a threat to confidentiality and the secret cultivation of administrative expertise. Academic debate on the evolution of the PII doctrine has centred on the allocation of responsibility between an overly deferential judiciary and ministerial concern to avoid political embarrassment. The role of civil servants may have been more coherent and ideologically motivated than previously appreciated. As the courts increasingly challenge government claims for suppression of material at trial, the article highlights the historical factors determining the executive's innate instinct for secrecy.     

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.     

The no-conflict rule: the acceptance of traditional equitable values?

Boardman v Phipps is a leading authority on the no-conflictrule. The House of Lords maintained the strict rule that historicallyequity has imposed on a fiduciary. This article explores howthe dissenting judgment of Lord Upjohn in Boardman v Phippshas been preferred by the lower courts and why the courts haveadopted such a position. This has fuelled a more general debateas to whether the no-conflict rule should be harsh or more flexible.Recent cases including Bhullar v Bhullar are discussed to illustratethe present approach of the courts to the recurring issues surroundingpossible applications of the no-conflict rule.     

Caution in the Classroom: K-12 Teacher In-Class Speech,The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.     

Obesity, courts, and the new politics of public health

Health care politics are changing. They increasingly focus not on avowedly public projects (such as building the health care infrastructure) but on regulating private behavior. Examples include tobacco, obesity, abortion, drug abuse, the right to die, and even a patient's relationship with his or her managed care organization. Regulating private behavior introduces a distinctive policy process; it alters the way we introduce (or frame) political issues and shifts many important decisions from the legislatures to the courts. In this article, we illustrate the politics of private regulation by following a dramatic case, obesity, through the political process. We describe how obesity evolved from a private matter to a political issue. We then assess how different political institutions have responded and conclude that courts will continue to take the leading role.     

Fingerprint comparison evidence has been under sustained attack in the United States of America for the last number of years: Is the critique with regard to reliability sufficiently penetrating to warrant the exclusion of this valuable evidence?

The decision in Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993) brought about renewed attention to and scrutiny of fingerprint comparison evidence in the United States of America. In terms of the decision courts were to act as the gatekeepers with respect to the admissibility of scientific expert evidence. This article describes these events and investigates the grounds upon which challenges were made to fingerprint comparison evidence in the courts, as well as the position that was taken by the courts. The article also considers the fundamental test for the admission of expert evidence, and whether the critique pointed out by the defendants in the cases with regard to reliability are sufficiently penetrating to warrant the exclusion of fingerprint comparison evidence.     

A Gramscian Approach to Studying the Judicial Decision-Making Process

This paper applies a Gramscian analytical framework to scrutinise the judicial decision-making process. Based on two distinct research projects, the article explores how, on one hand judges in criminal courts can be identified as part of the bureaucratic machinery of the state, as ‘technicians of repression’; whereas, on the other hand, human rights judges can be distinguished as providing ‘moral and intellectual leadership’ in their production and reproduction of certain values. Some of the key questions this article seeks to answer are: What is the role of hegemony in the judicial decision-making process? To what extent are legal actors both ‘technicians of repression’ and ‘moral and intellectual leaders’? This paper uses examples from empirical research conducted at courts in Argentina and at the European and Inter-American Courts of Human Rights to identify and explore this dual role of judges as both repressive technicians and moral and intellectual leaders in neo-liberal capitalist societies.     

Police accountability and the Irish law of evidence

Common law courts have differed on whether and to what extent an exclusionary rule should be used as a tool to impose standards on the police. The Irish courts have pursued an uncompromising approach in this area. Basing themselves on the imperative of upholding the constitutional rights of the accused, they have been willing to exclude relevant and cogent evidence on the basis that it was obtained by the police in breach of those rights. This article locates the Irish constitutional exclusionary rule in the broader context of the role of the law of evidence in police governance. Citing specific examples from the Irish legislation and case law, it shows how recent legislative interventions and some judicial hesitancy have fuelled inconsistent and contradictory trends. It concludes that there is now a pressing need for reflection on the respective roles of the legislature and the courts in this area.     

Responses to Salduz: Procedural Tradition,Change and the Need for Effective Defence

This article examines the responses of national courts to the ECtHR's decision in Salduz v Turkey that suspects be provided with access to a lawyer before they are first interrogated by the police. It argues that harmonious application of human rights standards in criminal proceedings should build upon common values underpinning the procedural traditions of member states. ECtHR success in gaining acceptance for the principle of access to a lawyer during police interrogation, anchoring it in the privilege against incrimination, is contrasted with resistance towards giving the defence any active role during criminal investigations. It is argued that this resistance can be overcome by an appeal to safeguards that have long dominated the trial process. As the investigation phase increasingly determines the outcome of criminal proceedings, standards of fairness traditionally reserved for the trial process should be applied also to this phase in order to provide suspects with an effective defence.     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

Is the Sum Greater than Its Parts? Circuit Court Composition and Judicial Behavior in the Courts of Appeals

Building on strategic models and the collegial nature of the U.S. courts of appeals, this article assesses the influence of a circuits' composition on individual judges' behaviors and the president's role in shaping the courts. As partisanship is one of the few signals of a nominee's ideology known to an executive administration at the time of appointment, it is important to measure partisan composition as a factor in individual behavior as well as other measures of overall ideology of the circuit. This article finds that the composition of the circuits influences individual behavior, even after controlling for individual ideology, panel effects, and other contextual factors. This remains true whether we examine composition based on partisanship or on more nuanced ideological measures. Noting that presidents, on average, create new partisan majorities within two circuits per four‐year term, these findings suggest turnover on circuit courts may have influences on case outcomes outside of a particular new appointee's voting record.     

The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States

This article presents the findings of the first research study of the Institutional Hearing Program (IHP), a prison-based immigration court system run by the U.S. Department of Justice. Although the IHP has existed for four decades, little is publicly known about the program's origin, development, or significance. Based on original analysis of archival records, this study makes three central contributions. First, it traces the origin and growth of the IHP within federal, state, and municipal correctional facilities. Notably, although the IHP began in 1980 as a program to deport Cuban asylum seekers held in civil detention in an Atlanta prison, it now operates to deport noncitizens serving prison sentences in twenty-three federal prisons, nineteen state prison systems, and a few municipal jails. Second, this article uncovers the crucial role that prison-based immigration courts have played in shaping the design of carceral institutions around the priorities of an immigration system that primarily targets Latinos for deportation. Third, this article shows how immigration courts embedded in carceral spaces have served as influential, yet overlooked, incubators of changes to immigration law and practice that today apply to all immigration courts, not just the IHP. These findings have important implications for contemporary understandings of the relationship between immigration detention, racialized control of migration, and penal punishment.