European Integration: Popular Sovereignty and a Politics of Boundaries

The problem raised by popular sovereignty in the framework of the EU is not whether it is relevant to European integration; it is. The problem is another, namely the identity and, thus, the boundary of a democratic polity. The very idea of ‘European’ integration suggests that integration is only imaginable by reference to the closure provided by an identity, a boundary that is normative rather than merely geographical. In this minimal sense, a European people is the necessary presupposition of integration, not merely its telos. Bluntly, there is no integration without inclusion and, also, no integration without exclusion. This, then, is the real problem raised by popular sovereignty in a European context: if there is no such thing as non‐exclusionary integration, how can a reflection on the boundedness of European integration be more than a rationalisation of exclusion?     

Between Mendez and Brown: Gonzales v. Sheely (1951) and the Legal Campaign Against Segregation

On March 26, 1951, three years before the historic Brown decision, in Gonzales v. Sheeley ( 1951 ) , Judge Dave Ling of the United States District Court of Arizona ruled that the segregation of Mexican American students in a separate "Mexican School" was unconstitutional. In this article, we trace the legal arguments in Gonzales through two prior cases, Mendez v. Westminster (1946 ) and Delgado v. Bastrop (1948 ). We analyze how racialism, the social science critique of racism and legalism, shaped the arguments in the three cases. Our analysis suggests that Gonzales was a departure from Mendez and Delgado because it was the first case in which a court made an unqualified argument against segregation. The trajectory of the legal arguments across the three cases highlights how new cultural ideas about race were slowly incorporated into civil rights case law, a process that was also shaped by the institutional norms and practices of the legal system.     

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.     

Abela and Others v Baadarani: The Politics Within the Supreme Court

The Supreme Court deals with many political cases, where policies are at stake, while on the other hand there is the politics within the Court which can also play an important role. It is difficult to judge the current system without sound empirical and theoretical studies, so one cannot confidently assess the effectiveness of the paper appeals in the American System in the light of the long history of the UK system, of different career paths of advocates in these two countries and of different routes of appointment for judges in both jurisdictions. Nevertheless, any interviews that were conducted with senior judges in the UK were conducted a long time ago and might not be applicable to the current realities. It is true that the British system is open to moderation—the elimination of the House of Lords and its replacement with the Supreme Court is the best example—but maybe more changes are needed. It is paramount that greater diversity in the profession brings fresh perspectives. This is evident in electing practitioners with different career paths, such as Justice Kennedy and Lord Sumption. The president of the Supreme Court, Lord Neuberger, even suggested advertising the next position in the Supreme Court to be on a part time basis, to enable the election of an academic. As stated in the introduction, since Abela and others v Baadarani is a case with important principles at stake, is there a space for political disagreement?     

Examining exclusionary conduct of HMOs and PPOs: a case comment on Northwest Medical Laboratories v. Blue Cross and Blue Shield of Oregon.

As the climate of the health care industry has changed to one of cost-containment and competition through the growth of HMOs and PPOs, health care providers have become the subjects of antitrust litigation. One such case, Northwest Medical Laboratories v. Blue Cross and Blue Shield of Oregon, involved a medical laboratory and a radiology center who claimed that they were victims of an illegal group boycott after defendant's pre-paid health plan denied them preferred provider status. The Oregon Court of Appeals, using the traditional antitrust analysis applied to other industries for decades, failed to consider the intricacies that exist within the health care industry. This result led to an inaccurate market share computation and an inadequate rule of reason analysis. This Comment examines the shortcomings of the Northwest Medical opinion and argues that, in applying the antitrust laws to the health care industry, courts in future cases must recognize and respect the unique features of the business of providing health care.     

Knight v. Beverly Health Care Center: in the Supreme Court of Alabama

HELD: Before tube feeding may be withdrawn from a person who is unconscious, pursuant to the directives of a living will, there must be a finding by clear and convincing evidence that the patient is in a "persistent vegetative state" as defined in her living will, or in a "permanent unconscious state" as defined by state statute.     

Stealing Thunder as a Courtroom Tactic Revisited: Processes and Boundaries

Stealing thunder refers to a dissuasion tactic in which an individual reveals potentially incriminating evidence first, for the purpose of reducing its negative impact on an evaluative audience. We examined whether it was necessary to frame the negative revelation in a manner that downplayed its importance, and found that stealing thunder successfully dissuaded mock jurors even without framing. We also sought to determine the mechanism by which stealing thunder operated, and found that stealing thunder led mock jurors to change the meaning of incriminating evidence to be less damaging to the individual. We also found that stealing thunder's effectiveness did not hinge on whether or not opposing counsel also mentioned the thunder evidence, and that the stealing thunder tactic was no longer effective when opposing counsel revealed to the mock jurors that the stealing thunder tactic had been used on them.