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 CLSR-LSPI Seminar – ‘The future of privacy regulation in the online world’

The annual CLSR-LSPI Seminar (www.lspi.net) took place on 19 September 2011 at the Sixth Legal, Security & Privacy Issues in IT Conference (LSPI) at University of Nicosia, Cyprus. The event, led by Prof. Steve Saxby, Editor-in-Chief of CLSR, invited contributions from five legal specialists on a variety of current issues dealing with the future of privacy. A lively discussion took place amongst those present after each intervention. The reports of those who presented are recorded below.     

Are There Methods of Reasoning on ‘Meta‐Legislation’? The Interpretation of Legislative Competence Norms within the Methodology of European Constitutional Law

Legislative competence norms are paradigmatic elements of European constitutional law and the supranational, post‐federal era. The article aims to address legislative competence norms from the viewpoint of methodology by considering significant features of reasoning on European legislative competence norms. The discussion will be based on understanding legislative competences as ‘meta‐legislation’. That concept encompasses a substantive rather than formalistic, and a politically informed rather than strictly positivist account of legislative competences and their methodology. Against that background, the interpretation of competence norms is assessed. Subsequently, the process of interpretation is discussed according to judicial practice, constitutional theory and general legal methodology. A consideration of the significance of the—usually vast—wording of competence norms completes that discussion. Finally, consequences about the political inclusiveness of interpreting competence norms and the issue of ‘clarity’ are drawn. A conclusion summarises the results.     

Hands‐Off or Hands‐On?: Deconstructing the ‘Test‐Case’ of Re G within a Culture of Children's Rights

This note challenges the so‐called ‘test‐case’ status of Re G in so far as it attempts to overturn the principle established in Re T that courts should adopt a neutral position when it comes to weighing the merits of different upbringings and the education provided by parents of minority religions. In determining the future upbringing and education of children who had been brought up in a minority religious community, Re G applies a principle of maximising educational opportunity in order to uphold the mother's proposed educational choice and way of life. This note argues that Re G was wrong to do so, should not be regarded as establishing any new principle and that the only relevant principle, both in determining this case and future cases, ought to rest on the psychological well‐being of the child.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

The crime of the century? The case for the Holocaust

With the twentieth century now ended the Holocaust is surelya leading contender for the title of ``The Crime of the Century.'Although a massive literature exists on the Holocaust, very littleof this literature has been produced by criminologists. Somereasons for this relative neglect are identified and a case ismade for the claim that criminology can contribute to anunderstanding of the Holocaust and that the Holocaust cancontribute to the development of a more profound criminology. Thispaper draws upon an integrative criminological approach toconstruct a framework for understanding the Holocaust. This multi-disciplinary framework links philosophical, sociolegal,sociological, behavioral and criminological dimensions todiscriminate between unique and non-unique aspects of the Holocaustas a case of genocide and as crime. The paper closes with someobservations on the relevance of the Holocaust for challengesconfronting a twenty-first century criminology.     

The End of the Beginning? The Freedom of Information Bill 1999

With the publication of its plans for a Bill on Freedom of Information, the new Labour government has been accused of abandoning its promise of greater openness in the way government is conducted in this country and its proposals are seen as a departure from the highly applauded contents of the White Paper published in December 1997. The draft Bill has been pilloried by friend and foe alike. It is seen as a litmus test of Blair's government and where it really stands on the citizen/state relationship and how the future balance will lie between the executive and Parliament. The authors examine the events surrounding the publication of the Bill and its scrutiny by the pre-legislative select committees in the Commons and Lords. The Home Secretary has hinted at possible concessions in the light of fierce criticism. Is this a Bill worth saving and how can it be improved to capture a more appropriate balance between confidentiality, secrecy, and openness in the conduct of modern governance?     

The importance of dark adaptation for forensic examinations; an evaluation of the Crime-lite Eye™

Forensic practitioners are recommended to dark adapt their eyes prior to conducting evidential searches in the dark. The dark adaptation process remains poorly standardised across the discipline, with little quantified regarding the benefits of such preparative steps. Herein, we report the findings of a study that recruited 50 participants to assess the effectiveness of the Crime-lite Eye?, a darkness adaptation device developed to assist forensic practitioners both in the laboratory and in field. Participants were tasked with searching for the fluorescent signatures left by reaction of 1,8-diazafluoren-9-one (DFO) with amino acids, in a manner akin to the fluorogenic fingerprint treatment of porous evidence. Using an Epson Stylus Photo R265 inkjet printer, ink cartridges were filled with alanine solutions of various concentrations, allowing different motifs to be printed onto copy paper and subsequently developed using DFO. Participants searched for this ‘evidence’ both with and without dark adapted vision. On average, participants were able to locate and correctly recognise 16% more evidence once dark adapted using the Crime-lite Eye?.The increase in evidence located by participants once dark adapted suggests that crime scene officers should be dark adapting in order to visualise as much as possible. The time taken to dark adapt, 10?min on average during this study, is not excessively long, and should not significantly slow the investigation.     

‘We the People of the United States…’: <Emphasis Type="Italic">The Matrix</Emphasis> and the Realisation of Constitutional Sovereignty

In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the United States’ Constitution is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional law is experienced as “natural” through the phenomenological experience of cinema.     

The Usage of the AMA <Emphasis Type="Italic">Guides</Emphasis> for the Determination of Psychological Injury Within the State and Federal Workers’ Compensation Systems

Psychological injuries, like physical injuries, may occur within the workplace. If those injuries are reported to be a result of a triggering event in the workplace, then a workers’ compensation (WC) claim may be filed by the individual. State WC and the federal WC systems have laws and rules in place to address workplace psychological injury claims. However, because each State has its own WC State laws as does the federal WC system, there is no current standardization in defining either psychological injury or in defining disability. This is because each system has its own definitions. A few States allow workplace psychological injury claims. Some States do not accept WC psychological injury claims. The remaining States recognize workplace psychological injuries but with specific limitations. The federal WC system allows WC psychological injury claims. There are problematic issues that occur in the State and federal WC systems. These issues are utilizing outdated terminology, employing outdated diagnostic criteria, and allowing documentation submission and professional opinion that does not comport with current professional standards of care. In addition, the need for a definitive answer to address causation is not always possible to address with regard to psychological injury. These types of issues introduce imprecision into the determination of psychological injuries. To address these concerns, the American Medical Association developed the Guides to the Evaluation of Permanent Impairment as a means to take a more scientific approach to the assessment of impairment. This stance was a move away from the poorly defined term, “disability”. The focus was on evaluating the individual’s functioning in terms of impairment. The AMA holds that this is a more objective method that provides a balance between clinical opinion and the utilization of a more scientific methodology that increased precision in the determination of psychological injury and purported impairment in functioning that may have resulted from the injury. The American Medical Association’s Guides to the Evaluation of Permanent Impairment are utilized by many States and the federal WC systems to assist in the evaluation of psychological impairment in functioning and in the WC claims process. Some States opt to use earlier editions of the Guides. Other States and the federal WC system require the usage of the most current edition of the Guides. A few States opt to forego the usage of the Guides altogether and develop State-specific guidelines. The complexities that arise within the WC systems as well as usage of the Guides to evaluate and assess psychological injury are explored as well as potential solutions to address the imprecision that occurs within the WC systems.     

The Case of the “Offering of Life” in the Causes for Canonization of Catholic Saints: The Threshold of Self-Sacrifice

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - Catholic legal and doctrinal tradition defined two main cases for the canonization of saints:...     

‘The referring court asks,in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

The Court of Justice can rephrase or otherwise depart from the questions referred to it by national courts under Article 267 of the Treaty of the Functioning of the European Union. It does so routinely: a practice known as reformulation. Legal literature often argues that reformulation is used to clarify national court questions and bring them within the scope of European Union law. The aim of the present article is to explore this claim systematically. To this end, it compiles a unique dataset consisting of the Orders for Reference, in which the referring courts embed the preliminary questions, and the judgments, in which the Court of Justice communicates the answers. The findings suggest that reformulation is a decision‐making approach rather than a fixture of decision writing. It's main function is to neutralize conflicts and Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure and its outcomes.     

Can 14,737 women be wrong? A meta‐analysis of the LSI‐R and recidivism for female offenders*

Research Summary Over the past two decades, researchers have been increasingly interested in measuring the risk of offender recidivism as a means of advancing public safety and of directing treatment interventions. In this context, one instrument widely used in assessing offenders is the Level of Service Inventory‐Revised (LSI‐R). Recently, however, the LSI‐R has been criticized for being a male‐specific assessment instrument that is a weak predictor of criminal behavior in females. Through the use of meta‐analytic techniques, we assessed this assertion. A total of 27 effect sizes yielded an average r value of .35 ([confidence interval] CI = .34 to .36) for the relationship of the LSI‐R with recidivism for female offenders (N= 14,737). When available, we also made within‐sample comparisons based on gender. These comparisons produced effect sizes for males and females that were statistically similar. Policy Implications These results are consistent with those generated in previous research on the LSI‐R. They call into question prevailing critiques that the LSI‐R has predictive validity for male but not for female offenders. At this stage, it seems that corrections officials should be advised that the LSI‐R remains an important instrument for assessing all offenders as a prelude to the delivery of treatment services, especially those based on the principles of effective intervention. Critics should be encouraged, however, to construct and validate through research additional gender‐specific instruments that revise, if not rival, the LSI‐R.     

Who's Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same‐Sex Couples

Recently, the definition of marriage has been significantly altered. No longer do we find ourselves exclusively in the midst of “traditional marriage” between one man and one woman. Instead, everywhere we experience different kinds of marriages and diverse, nontraditional families. The United States has finally caught up to many advanced democracies in universally recognizing same‐sex marriage through the Supreme Court's decision in Obergefell v. Hodges. However, the next question remains unanswered: what about families of same‐sex couples? This Note explores the nature of same‐sex couples, their families, and in particular, their children. It addresses the issue of the marital presumption of legitimacy and encourages its application to all legally recognized married couples regardless of sexual orientation and biology. Even though prior to Obergefell some states were unwilling to apply the presumption, since the implementation of marriage equality, the next logical step would be to utilize the presumption to ensure that all parents, regardless of gender, are recognized and families are preserved.     

The Critical Instance ‘After’ The Critique of the Subject

The central argument of this piece involves the idea that insofar as␣critique, with its two basic tropes of question and judgment, has been central to the ȁ8classical’ configuration of subjectivity, the critical instance ȁ8after’ the critique of the subject is to be found re-situated on a different philosophical terrain where the question of the question is re-thought and the logic of judgment displaced by an ethic of encounter. It is on this terrain that we can then start sketching the emergence of a different set of critical instances: critical ontologies, critical analytics and critical erotics.