Queer Legal History: A Field Grows Up and Comes Out

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.     

Extending the Confusion About Bayes

In R v T [2010] EWCA Crim 2439, [2011] 1 Cr App Rep 85, the Court of Appeal indicated that ‘mathematical formulae’, such as likelihood ratios, should not be used by forensic scientists to analyse data where firm statistical evidence did not exist. Unfortunately, when considering the forensic scientist's evidence, the judgment consistently commits a basic logical error, the ‘transposition of the conditional’ which indicates that the Bayesian argument has not been understood and extends the confusion surrounding it. The judgment also fails to distinguish between the validity of the relationships in a formula and the precision of the data. We explain why the Bayesian method is the correct logical method for analysing forensic scientific evidence, how it works and why ‘mathematical formulae’ can be useful even where firm statistical data is lacking.     

Predictors of Support of Legislation Banning Juvenile Executions in Oklahoma: An Examination by Race and Sex

The Supreme Court has recently decided to re‐examine the constitutionality of executing individuals under the age of 18 at the time of the offense. The Supreme Court’s reliance on public opinion as evidenced through opinion polls and changing laws in the 2002 Atkins decision has suggested that public opinion may play a role in the Court’s decision regarding juvenile executions. There is considerable evidence that the majority of Americans favor a ban on juvenile executions. In the current study, we use Oklahoma data collected in 2003 by the Oklahoma University Public Opinion Learning Laboratory to examine more closely the factors that predict a support of a ban on juvenile executions. Interestingly, only one fourth of Oklahomans oppose such a ban. Earlier research suggested that religious fundamentalism is linked to support of juvenile executions, but we did not find this, suggesting that public opinion may be shifting. We then analyzed the data separately by race and then by sex. Our findings suggest that there may be differences between groups in the predictors of support for a ban on juvenile executions, at least in Oklahoma, indicating the need for further research.     

A Purposive Approach to Employment Protection or a Missed Opportunity?

This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.     

Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case

In its recent Wall Opinion, the International Court of Justicegave rather short shrift to Israel’s claims that the constructionof the wall could be justified as an act of self-defence inthe sense of Article 51 United Nations Charter. This articleassesses the Court’s approach and places it in the broadercontext of ICJ pronouncements on the use of force. It suggeststhat the Court failed to appreciate the complex legal problemsto which Israel’s claim gave rise, in particular the problemof self-defence against attacks by non-state actors. It showsthat the Court’s restrictive understanding of self-defence,while following the 1986 merits judgment in the Nicaragua case,is difficult to bring in line with modern state practice, andincreases the pressure to admit other, non-written, exceptionsto Article 2(4) of the UN Charter.     

Every complaint matters: Human Rights Commissioner's opinion concerning independent and effective determination of complaints against the police

Police complaints are a developing area of European human rights law and criminal justice policy. In response to the risk of cultures of police impunity emerging in some European states the Council of Europe Commissioner for Human Rights launched a police complaints initiative in 2008. Written by the consultant to the Commissioner this paper examines his recently published Opinion concerning independent and effective determination of complaints against the police. Firstly, an overview is presented of the different types of complaints mechanism currently operating across Europe. This is followed by an outline of the five police complaints principles developed in the jurisprudence of European Court of Human Rights and explanation of the two-tiered citizen oversight approach advocated in the Commissioner's Opinion. The paper concludes with a discussion of the importance of the principles as a means for ensuring that every police complaint is handled appropriately and proportionately.     

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.     

Toward a better understanding of the hierarchical nature of police organizations: Conception and measurement

The present article proposes a reconceptualization of police organizational hierarchy as a multidimensional construct. This notion of a multidimensional police hierarchy was derived from the sociological literature of stratification and the prior management literature of organizational hierarchy. It is proposed here that police employees are stratified based upon the differential allocation of various resources (such as rewards and formal power) and attributes (such as skills). This differential allocation stratifies employees into five different hierarchies. This article describes these five hierarchies and suggests how they might be measured, at both the individual and comparative/organizational levels. Finally, the possible interrelations among these hierarchies is discussed as well as three management issues concerning this multidimensional conception of police hierarchy.     

The human right to marry: a refugee’s perspective

In the European Court of Human Rights cases of Muñoz Díaz v Spain in 2009 (Muñoz Díaz v Spain [2009], Application No. 49151/07) and Serife Yigit v Turkey in 2010 (Serife Yegit [2010], Application No. 3976/05), involving unregistered/informal ‘marriages’ of a Roma couple and a Muslim couple, respectively, the Grand Chamber took the position that civil marriages are available to all people in the state without distinction and therefore no breach of Article 12’s right to marry (nor Article 14’s prohibition of discrimination) had occurred when the respective states failed to recognise the informal marriages of the applicants. This article considers these two cases, and asks whether the court’s position is challenged by migrants/refugees, whose access to formal marriages maybe impeded due to a lack of identity and status documentation.     

At the Procedural Crossroads

Decision No. 8-rp/2010 of the Constitutional Court of Ukraine (CCU) of March 11, 2010 (hereinafter, the Decision) rocked the legal community. In that decision, the sole body of constitutional jurisdiction gave an official interpretation of the terms "highest judicial body," "high judicial body," and "initiation and conduct of cassation review procedure" contained in Articles 125 and 129 of the constitution of Ukraine. With regard to the constitutional petition, the CCU held in particular that the constitutional status of the Supreme Court of Ukraine (SCU) does not permit this tribunal to conduct cassation review of the decisions of the high specialized courts, courts that exercise cassation review authority.     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

Unfair Contract Terms,Unfair Prices and Bank Charges

This note considers how the Unfair Terms in Consumer Contracts Directive 1993 draws the line between the review of unfair contract terms and the review of unfair contracts (and, in particular, unfair prices) in the context of two cases concerning bank charges: Abbey Life plc v The Office of Fair Trading (2009) (the Bank Charges case) in the UK Supreme Court and Case 484/08 Caja de Madrid (2010) in the European Court of Justice. The note explains the proper question to be addressed by a court for this purpose under article 4(2) of the Directive and criticises the Supreme Court's approach to the interpretation of article 4(2) and its application of the UK regulation implementing this article to the circumstances in the Bank Charges case.     

Measuring Precedent in a Judicial Hierarchy

Identifying the U.S. Supreme Court's most influential precedents is integral to understanding its impact on society. To make these identifications, scholars often analyze the network of citations in Supreme Court opinions. I contend that the broader jurisprudential significance of precedent can be better captured by considering how frequently a precedent is followed across the federal judicial hierarchy. In support of this contention, I present an analysis of original data on the treatment of every Court precedent 1946–2010 in all three levels of the federal judicial hierarchy. I show that a class of complex and ambiguous precedents are followed significantly less at all levels of the hierarchy. Yet these same fractious precedents exhibit high citation rates in Supreme Court opinions. The results show that different methodological choices capture strikingly different theoretical concepts, ones that are easily conflated in the study of legal precedent.     

Buckland v Bournemouth University Higher Education Corp: Statutory Constructive Dismissal and the Implied Term of Mutual Trust and Confidence

The decision of the Court of Appeal in Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121; [2010] ICR 908; [2010] IRLR 445 is one which has ramifications for the common law and statutory regulation of the contract of employment. However, its significance does not end there, since it offers wider insights into the relationship between common law and statute law, as well as the English and Scots law of contract generally.     

Clashing Over Conversion: “Who is a Jew” and Media Representations of an Israeli Supreme Court Decision

Religion-state issues are particularly contentious in the Israeli context and they are often resolved by litigation before the Supreme Court in its capacity as the High Court of Justice. A recent controversy that reached Israel’s High Court of Justice in 2005 involved a petition to recognize the validity of non-Orthodox conversions to Judaism. This paper examines the role of the press in constructing the controversy and the image of the High Court of Justice by analyzing all the reports and editorials in both an elite and in a popular newspaper, published from a week before the decision was issued until to 1 month afterwards. It looks at the visual, inter-textual and linguistic features of the articles and analyzes the frames used in representing the Court, the petitioners, and the controversy. We found that two distinct frames were used by the papers to convey the essence of the controversy in the Tushbeim case. While the organizing idea in Haaretz, the elite newspaper, was one of Israel as a civic state, Yediot, the popular newspaper, emphasized the religious dimension of Israeli nationhood. Moreover, contrary to widespread perceptions of the popular press, it presented a wider range of views than did the elite newspaper, which tended to praise the Court and to support the decision. However, both papers avoided challenges to the basic issue of whether religious authorities should control the definition of the character of Israel as a Jewish State. Thus, the media in effect defined the terms of the struggle over the Jewish identity of the state within consensual boundaries.     

Columbia: Neglected dimensions of violence

Editor's note: Rosa Del Olmo has recently written on the same theme in: The Attack on the Supreme Court of Columbia: A Case Study of Guerrilla and Government ViolenceViolence. Aggression and Terrorism 2 (1988): 57–84.     

Kids are Different: The United States Supreme Court Reforms Youth Sentencing Practices for Youth Prosecuted in the Criminal Justice System

In a series of decisions issued between 2005‐2016, the United States Supreme Court relied on emerging scientific research detailing the developmental differences between children and adults to revamp its juvenile sentencing jurisprudence under the Eighth Amendment. The research established that youth’s developmental immaturity reduces their culpability for their criminal conduct, while also demonstrating their heightened capacity for change and rehabilitation. The Court focused on the most extreme sentences for youth, banning the imposition of the death penalty on youth under the age of eighteen in Roper v. Simmons (2005), and severely limiting the availability of life without parole sentences even for youth convicted of murder, in Graham v Florida (2010) and Miller v Alabama (2012). This article traces the Court’s evolution in reviewing sentences for youth in our justice system, and considers how the Court’s reasoning in these cases may influence further reforms in the justice system’s treatment of youth looking ahead.     

‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’per se.     

Does Europe Need a Constitution? Demos,Telos and the German Maastricht Decision

Abstract: Through a close reading of the Maastricht Decision of the German Federal Constitutional Court Weiler examines critically the so-called No-Demos Thesis according to which the absence of a European Demos precludes democratisation of the Union at the European level and requires the mediation of Member State institutions. He traces the roots of this thesis to Carl Schmitt and argues that it represents a failure of the Court to understand the Union in terms different from the Schmittian strand in German constitutional theory. He claims, inter alia, that the No Demos thesis is premised on an organic understanding of peoplehood deriving from the European Nation-State tradition which conflates nationality and citizenship and can, as a result, conceive of Demos only in statal terms. Weiler first presents an alternative view of the Union and of supranationalism and then offers a non organic view of Demos and argues for a ‘European’ notion of membership in which each individual would belong to multiple demoi defined in different ways.