Is a Local Government’s Decision ‘In Writing?’:The U.S. Supreme Court to Rule

Abstract

An application to place a 108‐foot‐tall cell tower in a residential neighborhood. An outpouring of opposition. A public hearing. A denial—by unanimous vote on an oral motion. And a letter to the applicant stating that the application had been denied and referring to the hearing’s minutes, which reflect reasons why the board may have denied the application. These are the key facts of T‐Mobile South, LLC v. City of Roswell, No. 13‐ 975, a case that the U.S. Supreme Court will consider this fall. The case’s central legal question is also straightforward. The Telecommunications Act of 1996 states that “ [a]ny decision . . . to deny a request . . . shall be in writing. ” The Court will decide whether it is sufficient for a city to state in writing that it has denied the application and to refer to the record, or whether the written denial must also describe the reasons for the city’s decision. The case could have significant impacts on how local zoning boards function and on the form their decisions must take to survive legal challenge. It also could lead to effects on local governments well beyond the narrow issue presented here.     

Reviewer’s Comments to “The Measurement of Legitimacy: a Rush to Judgment?”

Asian Journal of Criminology -     

The Law’s ‘Majestic Equality’

Anatole France’s The Red Lily is best known for this ironic aphorism: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ The laws mentioned in this aphorism are open to two criticisms. The first criticism is that they forbid conduct that oughtn’t to be forbidden. The second criticism is that they unfairly place greater burdens of compliance on some (here, the poor) than on others (here, the rich). It may be onerous for the poor to comply with the law against, say, sleeping under bridges; not so for the rich. It is this second criticism that I read France as expressing, and it is the reach of this criticism that I explore in this essay. Specifically, I want to ask whether the second criticism may apply to a law even if the first criticism does not – whether there can be laws that are good in the sense that they forbid behavior that genuinely ought to be forbidden, but that are nonetheless unfair in the distribution of compliance burdens they yield. Some examples may tempt us to say ‘no.’ It may be more burdensome for thrill-seekers than for the rest of us to comply with laws against speeding, but that does not make speeding laws unfair. But I argue that the answer is ‘yes.’ Good laws can, and surprisingly often do, yield unfair distributions of compliance burdens. I conclude the essay by showing how remedies for this sort of unfairness might work.     

Presidential Influence on Police Practices: The U.S. President’s Indirect Impact on Fourth Amendment Case Outcome Through Supreme Court Appointments

Utilizing presidential influence theory as a conceptual framework, this study examines the extent to which U.S. presidents effect police practice case outcome through the Supreme Court justices they nominate. Through their confirmed nominees, presidents can have an enduring political impact long after they have left office. Results from a sample of 253 Fourth Amendment police practice cases from 1953–1997 demonstrate that presidents do have an indirect influence on police search and seizure practices. While presidents do not vote in Supreme Court cases, they still have an effect on case outcome because their appointees generally vote along similar ideological lines. Specific results, study limitations, and policy implications for law enforcement agencies are discussed.     

‘It’s Not OK’, but ‘It’ never happened: parental alienation accusations undermine children’s safety in the New Zealand Family Court

ABSTRACT

While the public campaign slogan in New Zealand when referring to family violence, is ‘It’s Not OK’, many women in New Zealand report that the Family Court prefers the catchphrase ‘It never happened’. When women and children escaping violence and abuse reach out to the New Zealand Family Court for protection believing the justice system will help them, they often enter an alternative reality where they are not believed and are subsequently made less safe. This is particularly so for those women whose well-founded fears for their children’s safety get reinterpreted as evidence of a deliberate attempt to alienate the children from their fathers. The Backbone Collective, an independent organisation, surveyed New Zealand women about their experiences in the Family Court, finding that many women reported being accused of parental alienation. This paper investigates the sources of these allegations of parental alienation and how they impact mothers and their children. We argue that the use of parental alienation in the New Zealand Family Court is undermining the international rights of children.     

The ‘unwanteds’ and ‘non-compliants’: ‘unsupported mothers’ as ‘failures’ and agents in Australia’s migrant Holding Centres*

Abstract

Ideas of assimilated citizenship are inherently gendered and during Australia’s post-World War Two migration boom they were deeply and explicitly invested in marriage, children and domesticity. In this period of social conservatism and economic boom, assimilation rhetoric functioned as a reassuring mirror for the host population, promoting the dream of prosperous family life as the ultimate aspiration for refugees and migrants. The role of immigration Holding Centres within this vision was to provide a context in which migrants and refugees could take their first steps towards accomplishing this dream. These Centres of necessary temporary residence were designed as sites of transition towards autonomous, assimilated family life. However, those families headed by single mothers, often referred to in government records as ‘unsupported mothers’, had limited opportunities to live up to such images of assimilation, or even to comply with the economic imperatives of the migration scheme that had brought them to Australia. Based mainly on Department of Immigration records, this article demonstrates that despite recognising the long-term economic and social prospects their children represented, government agencies viewed many unsupported mothers as system failures. They attempted to remedy the situation by turning these women into live-in domestic workers, at times placing pressure on them to institutionalise their children in order to facilitate this, thereby prioritising their compliance with economic imperatives over support for their parenting. Within the limited scope of their agency, unsupported mothers responded by attempting to negotiate the terms of their compliance or simply refusing to comply. For the latter group, Holding Centres became a more permanent home. This permanence is read here as a gendered form of resistance to a system that struggled to foster their economic self-reliance without compromising their capacity to be mothers.     

Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later

The U.S. Supreme Court’s ruling concerning suggestive eyewitness identification procedures (Manson v. Braithwaite, 1977, 432 U.S. 98) has not been revisited by the Court in the intervening 30+ years. Meanwhile, scientific studies of eyewitnesses have progressed and DNA exonerations show that mistaken identification is the primary cause of convictions of the innocent. We analyzed the two-inquiry logic in Manson in light of eyewitness science. Several problems are discussed. Ironically, we note that suggestive identification procedures (determined in the first inquiry) boost the eyewitnesses’ standing on three of the five criteria (used in the second inquiry) that are used to decide whether the suggestive procedures were a problem. The net effect undermines safeguards intended by the Court and destroys incentives to avoid suggestive procedures.

Introduction: Chile’s ‘Constituent Moment’

Law and Critique - The introduction looks at the constitutional situation in Chile since the demand for a new Constitution erupted in demonstrations all across the country, and argues that the...     

The United Nations War Crimes Commission’s Proposal For An International Criminal Court

The article examines the evolution of proposals for and debates around the establishment of a permanent international criminal court. Taking as its starting point discussions conducted in the context of the Paris Peace Conference of 1919, the article focuses on the various domestic, regional and international organizations that seriously considered the prospect of establishing a court with jurisdiction to prosecute international crimes in the inter-war and immediate post-World War II periods. Particular attention is paid to the central role played by the United Nations War Crimes Commission in this regard. In addition, the article provides an overview of recurrent themes that would re-emerge during the drafting of the Rome Statute some 50 years after the conclusion of the UNWCC’s activities.     

The Role of Denial in the ‘Theft of Nature’: Comparing Biopiracy and Climate Change

Since its inception, green criminology has highlighted, examined and analysed environmental degradation and destruction. The ‘theft of nature’ is both an example and a driver of illegal and ‘lawful but awful’ acts and omissions that degrade the environment. Even though this theft is widespread and sometimes well known, it persists because powerful actors put forward an influential narrative of denial that obstructs interventions. This paper explores the role of denial in two thefts of nature—biopiracy and climate change—and compares and contrasts the manifestations of denial that contribute to their continuation. We consider the ‘appeal to higher loyalties’ (economic interests over environmental concerns), and discuss the implications if such denial goes unchallenged and remains the central narrative.     

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.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

The Dragon’s shadow: an introduction to the special issue on ‘Chinese organized crime’

This paper provides an introduction to the articles submitted to the special issue of Trends in Organized Crime bringing forward numerous empirical research findings and theoretical accounts on Chinese organized crime in China and beyond.     

The ‘Hybrid Order’: origins and usage

The hospital direction (Hybrid Order) was inserted into the Mental Health Act (MHA) in 1997 (Crime (Sentences) Act, 1997). It enables higher courts to direct hospital admission for offenders, whilst still imposing a prison sentence. The origins of the ‘Hybrid Order’ and its patterns of usage are examined. Comparisons are made with its Scottish equivalent, Section 59A of the Criminal Procedure (Scotland) Act 1995. Both the ‘Hybrid Order’ and Section 59A have been used infrequently. This may reflect the fact that they were strongly resisted on ethical grounds at their point of inception and that they force the psychiatrist into the position of ‘punisher’, rather than ‘treater’. Since the 2007 Amendment of the MHA in England and Wales which expanded the remit of the ‘Hybrid Order’ to include all legal categories of mental disorder, not solely psychopathy, its use has unsurprisingly increased – this article delineates the considerations that need to be given in its recommendation.