Meaning, Time and the Law: Ex Post and Ex Ante Perspectives

This paper considers the tension between timelessness and timeboundedness in legal interpretation, examining parallels between sacred texts and secular law. It is argued that familiar dualities such as those between statute and judge-made law, law and equity, written and spoken discourse, dictionary meaning versus intended or contextual meaning, can be examined using this timeless/timebounded framework. Two landmark English cases, DPP v Shaw (1961) and R v R (1991) are analyzed as illustrating contrasting aspects of the socio-legal politics of “reasoning backwards”. The related temporal distinction between ex ante and ex post points of view is examined both within legal theory and as a key issue for linguistic and semiotic systems. The argument is made that this distinction is the key to a wide range of methodological and theoretical problems in relating linguistics and semiotics to law.

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Fiat Iustitia,Ruat Coeli?: The Misuse of Computers Act 1990

Conclusion It is considered, then, that wereCox v. Riley to come before the courts today, liability would arise under the offences of strict liability created by the Misuse of Computers Act 1990; as well as under the Criminal Damage Act 1971. Moreover, our sceptical layman, it is thought, would not be able to feel uneasy at the outcome, if the above arguments are correct. It is beyond doubt that the Act of 1990 was enacted to curb, insofar as is possible, the computer hacker and that still more insidious threat, the progenitor of computer viruses. It is interesting, too, that the act of a disaffected and possibly alienated employee, as presumably the act of the defendant in the case was, would now fall within the compass of that Act. The law would be applied; Justice would be done and seen to be done; and, dare it be said, Justice would be felt to have been done.     

“How an Ordinary Jury Makes Sense of it is a Mystery”: Barristers’ Perspectives on Rape,Consent and the Sexual Offences Act 2003

The Sexual Offences Act 2003 introduced significant reforms to the offence of rape, amid concerns regarding the low reporting and conviction rates for rape. One of the key aims of the Act was to improve the law relating to consent, in order to assist a jury in their decision making process. In addition, disquiet had been expressed with regards to the subjective nature of the mens rea of rape. Consequently, the 2003 Act reformulated the law so as to introduce an objective test. This article discusses the findings of a qualitative research project undertaken with 14 Barristers in the North West of England, in order to investigate counsels’ opinions regarding the 2003 reforms. Drawing upon data collected from semi-structured interviews, the article examines barristers’ perspectives with regards to the definition of consent, the ‘consent presumptions’, and the reformulated mens rea. In conclusion, it will be argued that while the barristers were not overly optimistic about the reforms introduced by the 2003 Act, they were also opposed to further reform to the substantive law and increased jury directions. Barristers argued that the law relating to rape should remain as simple as possible.     

The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR

This paper critically assesses the compatibility of s3 Digital Economy Act 2010 (DEA) with Article 8 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Ofcom’s Initial Obligations and two UK cases, namely: British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills,¹1 British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin).View all notes and R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others.²2 R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others [2012] EWCA Civ 232.View all notes It argues that the implementation of this obligation allows directed surveillance of subscribers’ activities without legal authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA). It also analyses compliance with the Strasbourg Court’s three-part, non-cumulative test, to determine whether s3 of the DEA is, firstly, ‘in accordance with the law’; secondly, pursues one or more legitimate aims contained within Article 8(2) of the Convention; and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that unless the implementation of s3 of the DEA required the involvement of State authorities and was specifically targeted at serious, commercial scale online copyright infringement cases it could infringe part one and part three of the ECtHR’s test, thereby violating subscribers’ Article 8 ECHR rights.     

Sentencing: Must justice be even-handed?

The question considered is whether a convicted criminal has been treated unjustly if the only reason he receives a much heavier sentence than another criminal convicted of the same crime is that he came before a different judge. The answer offered is that such a criminal would not be treated unjustly. The principle of equality in punishment, properly understood, does not forbid even such gross disparities in sentence (though it also does not require them). The paper discusses the 1978 Model Sentencing and Corrections Act in detail and has important consequences for the current movement to reform punishment to assure just deserts.Work on this paper was supported in part by a Summer Research Grant from Illinois State University, 1981.     

Redeploying Bayh-Dole: beyond Merely doing good to optimizing the potential in results of taxpayer-funded research

Opinions about the Bayh-Dole Act of 1980 and its implementation by US universities can depend on whether one views the Act as a series of tactics that are ends in themselves or as a policy declaration designed to protect the public against nonuse of taxpayer-funded discoveries and encourage their commercialization, utilization, and public availability. Those views appear to influence how universities and their leaders measure performance and define success, identify and allocate resources, approach transfer strategies, and negotiate terms and apportion risks relative to those terms. Those who view the Act as tactical tend to obscure the broader policy objectives which can result in substantial amounts of university research that is “never commercialized” (President’s Council of Advisors 2003), “restrained” (Schacht 2010b), and “left unused and unapplied” (Seipman in Univ Dayt Law Rev 30:209–243, 2004). Society then is deprived of the new products, services, approaches and experiences that can stimulate economic growth and advance human welfare. These and other consequences demand evaluations and assessments of university practices and behaviors and the extent to which they narrowly serve the Act’s tactics or more broadly serve its purposes of pursuing and maximizing the potential usefulness of the results of taxpayer-funded research. Too frequently, there seems to be a disconnect between federal policy and practices adopted or tolerated by universities and their leaders to implement that policy.     

De facto departures from insanity instructions

De facto departures form the law (de jure) have been noted in such areas as jury revolts, jury nullification, extralegal concerns, and insanity. The thesis developed here is that (a) when such departures have occurred in insanity cases, acritical rather thaninstructive view of jurors has prevailed; (b) this critical view impedes efforts to empirically understand jurors' constructs of insanity and thereby restricts considered legal changes; (c) the Insanity Defense Reform Act of 1984 is illustrative of such narrowly considered changes, and, based on empirical findings, this act fails to instruct jurors or produce verdicts different from its predecessors; and (d) based on empirical findings, the common sense construals ofsane andinsane do emerge, complex though they be. Suggestions toward an empirically derived common law test of insanity, one that harmonizes legal, psychological, and common sense perspectives, are offered.This article is based in part on a paper, De Jure and De Facto Insanity Tests, presented at the American Psychological Association's Annual Convention, August 14, 1988, Atlanta, Georgia.     

Public Diplomacy,Smith-Mundt and the American Public

The U.S. Information and Educational Exchange Act of 1948, also known as the Smith-Mundt Act, is a mostly unknown and widely misunderstood piece of legislation. Revised multiple times, the law bans domestic dissemination of Voice of America and other U.S. international broadcast content in the United States. Presenting government-supported international broadcasting as an example of public diplomacy, this article discusses the long-term misrepresentation of Smith-Mundt's original intent and highlights the consequences of the continuing ban. The article considers prospects for ending the ban and emphasizes potential opportunities presented by its elimination, concluding that ending the ban might eliminate incongruity between American foreign policy goals of democracy promotion and the reality of banned domestic content. Repeal of the ban may also result in unexpected remedies for challenges facing the American media industry and the American public's desire for international news.

The United States government may be the largest broadcaster that few Americans know about. Although its networks reach 100 countries in 59 languages, they are banned from distribution in the United States by a 1948 law devised to prevent the government from turning its propaganda machine on its own citizens. ^{1 1}Mark Landler, A New Voice of America for the Age of Twitter, N.Y. Times, June 7, 2011 at 9. The broadcasters comprising the U.S. international broadcasting operation are the Voice of America (VOA), Alhurra, Radio Sawa, Radio Free Europe/Radio Liberty, Radio Free Asia, and Radio and TV Marti. The Broadcasting Board of Governors (BBG) is “a bipartisan agency … that acts as a ‘firewall’ between the U.S. government and international broadcasting entities it funds.” Kim Andrew Elliott, America Calling: A 21st-Century Model, Foreign Service J., Oct. 2010, at 31. When Smith-Mundt was passed in 1948, USIB authority fell under the Department of State. Later, Congress created the United States Information Agency (USIA) to facilitate American public diplomacy operations. After the end of the cold war, Congress dismantled USIA and returned responsibility for American public diplomacy efforts to the Department of State. For an excellent history of the rise and fall of the USIA, see Nicholas J. Cull, The Cold War and the United States Information Agency: American Propaganda and Public Diplomacy 1945–1989 (2008).      

Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the gatekeeping role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between scientific and technical or otherwise specialized knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as science or nonscience. Moreover, judges' bench philosophy of science seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.     

Structural Models of Injustice and Illegalism in Israel

The question of whether a citizen is obliged to obey the law has occupied scholarly thinking since the days of Socrates. Thus, rarely has the question been examined empirically. Based on a survey of 1866 adults, citizens of the state of Israel, this study attempts to construct causal models linking socioeconomic status to subjective measures of injustice, and further to indicators of illegalism and disobedience among Jews and Arabs. LISREL analysis has been found a useful tool to construct the empirical models that measure how members of the two ethnic communities relate to the boundaries of the prima facie obligation to obey the law. Findings show that those who have no trust in one part of the legal system, will also have no trust in the rest of the system which, in turn, serves to legitimize taking the law into one's own hand.     

Law school accreditation in the New Independent States of the former Soviet Union: what steps for the future?

Legal education reform has recently emerged as a key component in the rule of law promotion in the former Soviet Union republics,1 1. See Jane M. Picker & Sidney Picker, Jr, Educating Russia's future lawyers—any role for the United States? (2000) 33 Vanderbilt Journal of Transnational Law 17, 18–19, arguing that the core building block of the rule of law rests on legal education. See John M. Burman, The role of clinical legal education in developing the rule of law in Russia (2002) Wyoming Law Review at 90, 101, stating that reform of the legal education is the most effective way of creating a culture of law. See Peter J. Sahlas & Carl Chastenay, Russian legal education: post-communist stagnation or revival? (1998) 48 Journal of Legal Education 194 at 194, arguing that “a system of legal education can do more than teach the society's rules to successive generations: it can inspire values of justice and promote social progress”. See also Mark Dietrich, Three foundations of the rule of law: education, advocacy and judicial reform, in: Law in Transition (London, EBRD, Autumn 2002), at p. 57, available at: http://www.ebrd.com/ pubs/law/lit/english/aut02.pdf. The author points out that reform of legal education is the single most important reform to be undertaken in the NIS region. If law students are not taught how to think critically, question authority and be guided by the ethical values of the profession while in law school, it is difficult to expect that they will become honest advocates, judges or prosecutors in the future. View all notes now sovereign and independent states collectively known, for the purpose of this paper, as the New Independent States (NIS). Scholarly articles and international forums2 2. See Europe and Central Asia Division of the Legal Department, World Bank, Selected Issues (2001) Challenges and Strategies. The World Bank Forum on Legal and Judicial Reform in Eastern Europe and the Former Soviet Union 33; see also Dietrich, op. cit., at 58. View all notes suggest that legal education reform could be advanced by developing and implementing accreditation procedures for law schools, updating law school curricula, establishing transparent and rigorous grading standards, and retraining the law faculty. This paper discusses just one of these measures, namely the development and implementation of quality evaluation and accreditation procedures for law schools in the NIS region. In order to explore this issue in detail, the paper has been structured into six parts.

?Part I provides a brief overview of legal education in the Soviet Union, thus placing the issues tackled in this paper into a historical perspective. Part II describes the main changes occurring in the higher education system in general and legal education in particular in the NIS region after 1991, emphasising new challenges that privatisation of the higher education sector posed to the quality of legal education, thus triggering an urgent need for quality-assurance and accreditation mechanisms. The currently existent NIS practices of licensing, evaluation and accreditation of academic institutions, including law faculties within multi-disciplinary academic institutions, as well as separate law schools, are described in Part III. Parts IV and V adopt a comparative approach to accreditation by providing an overview of accreditation procedures in the United States, and the recent initiative and trends in quality evaluation and accreditation in Western Europe. Drawing upon the information provided in Parts I–V, Part VI offers concrete suggestions and recommendations for improving the implementation of accreditation procedures in the NIS region. The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of either the American Bar Association or the Central European and Eurasian Law Initiative. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the policy of the ABA. Nothing contained in this report is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This report is intended for educational and informational purposes only. Research performed on Westlaw country of West Group. View all notes     

Exploring the Sources of Authority Over the Word Meaning in Transgender Jurisprudence

This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category. When it comes to the legal question of who may marry whom, and what the terms “man” and “woman” actually refer to, there is no statutory definition of the terms “man”, “woman”, “male” and “female”. This has put the onus on judges, especially those who needed to decide whether a transgender person can marry in his/her affirmed sex, to interpret these terms. Two lines of cases in transgender jurisprudence are examined so as to have a close study of how the courts construed these terms and classified transgender people into a category. The first concerns United Kingdom cases, namely Corbett v Corbett (1971), Bellinger v Bellinger (2003) and the Hong Kong case W v Registrar of Marriages (2010), (2011) & (2013). The second consists of Australian cases such as Secretary, Department of Social Security v State Rail Authority (1993) and Re Kevin (2002). This paper discusses these issues by analyzing and comparing different cases in transgender jurisprudence as well as examining how these issues play out in contemporary Hong Kong.     

On Her Majesty's Commercial Service: Bribery,Public Officials and the UK Intelligence Services

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Hate Crime and the Privatization of Political Responsibility: Protecting Queer Citizens in the United States?

My purpose in this article is to address issues that arise with the emergence of “hate crime” law as a response to violence against historically subordinated groups, with particular reference to gay, lesbian, bisexual, transgendered (henceforth “GLBT”), and otherwise queer citizens. The specific jurisdictional context of my reflection is the USA but the issues I raise have significance beyond that context. Increasingly in recent years hate crime legislation has been adopted or proposed in the US as well as other jurisdictions as a response to bigotry and violence directed against minority groups in multi-cultural societies. In 2006 in the UK, proposals to outlaw “incitement to religious hatred” were hotly debated. In 2008 demands are being made to extend the ‘incitement laws’ to include incitement to homophobic hatred. In 2007 in the US the Senate and House of Representatives in Washington DC passed an Act, which some described as the Matthew Shepard Act, to promote and enhance the use of the criminal law against perpetrators of crimes motivated by hatred based on perceived sexual orientation and gender identity. Ultimately the Act failed to become law. The debates in the UK and US provide the backdrop against which I want to examine the arguments for and against hate crime legislation, both generally and with specific application to queer citizens. This require us to think again about the relation of queer citizens to the state, the reach of political equality and human rights, and the aims and limits of the criminal law and system of “criminal justice”.

Richall Holdings v Fitzwilliam: Malory v Cheshire Homes and the LRA 2002

Richall Holdings v Fitzwilliam, holds that Malory v Cheshire Homes is binding in relation to the Land Registration Act 2002. Newey J saw himself as bound by that decision because he could find no relevant distinction between the provisions of the Land Registration Act 1925, and the Land Registration Act 2002. There are however significant differences in the general system of registration that is established. In particular the different roles of section 20 LRA 1925, and section 29 LRA 2002 mean that Malory was not binding and indeed ought not to have been followed. In addition, the treatment of the priorities rules in Richall misinterprets section 29 LRA 2002. Finally, the decision by‐passes the rectification and indemnity provisions of schedules 4 and 8. The decision ought to be overruled.     

Dilution in the US, Europe, and beyond: international obligations and basic definitions

Legal context. The efficacy of trade mark dilution as a causeof action has been cast into doubt by the Supreme Court's actualdilution standard. However, Congress is currently consideringthe Trademark Dilution Revision Act 2005, removing the actualdilution standard and resolving other difficulties under thepresent Lanham Act 43(c). This should breathe new life intoblurring and tarnishment. It should also be recalled that theEU already has strong laws against dilution and unfair advantage. Key points. This article identifies international dilution obligationsin order to determine (in Part II) whether the US and EU arecompliant. It identifies problems under the present US dilutionlaw and the solutions offered by the Revision Act. It comparesthe US proposals with EU dilution protection to determiningwhat the two jurisdictions have to learn from each other. Thistheme will be continued in the next part of this article, whichfocuses specifically on blurring/detriment to distinctive character. Practical significance. The introduction of new US legislationwill make successful dilution claims easier and will increasethe frequency of actions under 43(c). It is vital that trademark lawyers are familiar with the changes. At the same time,it should be remembered that many of the same outcomes can beachieved under the current European legislative provisions.To the extent that the jurisdictions do not live up to theirinternational dilution obligations, there is scope for proprietorsto lobby for even stronger protection.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

“Curiosity and a Pimp”: Exploring Sex Trafficking Victimization in Experiences of Entering Sex Trade Industry Work Among Participants in a Prostitution Diversion Program

This mixed-methods study explored entry into the sex trade industry and experiences of sex trafficking victimization among 478 adult women enrolled in a prostitution diversion program in a large southwestern state. Written responses to several open-ended survey questions were coded using a template approach to content analysis wherein a priori codes were identified based on characteristics of sex trafficking victimization identified in the Victims of Trafficking and Violence Protection Act of 2000 (U.S. Department of State, 2000 U.S. Department of State. (2000). Victims of Trafficking and Violence Protection Act of 2000. Retrieved from http://www.state.gov/j/tip/laws/61124.htm [Google Scholar]). Findings revealed that approximately one third of participants (n = 161) described sex trafficking experiences on entry into the sex trade industry, and quantitative analysis revealed that women who experienced sex trafficking as part of entering the sex trade industry were more likely to report abuse during childhood and adulthood, to report gang involvement, and to be involved in multiple types of sex trade industry work. Implications for policy and practice are discussed.     

Prudential Assurance Co. Ltd. v. London Residuary Body — The end of pragmatism or the beginning of reason?

Conclusion Whilst Lord Templeman seemed satisfied with the result of the decision in thePrudential case, Lord Browne-Wilkinson did not share his view. He said that the outcome of the case was unsatisfactory and did not accord with the agreement of the parties. He said No one has produced any satisfactory rationale for the genesis of this rule. No one has been able to point to any useful purpose that it serves at the present day and he urged the Law Commission to examine whether the rule should continue to operate in English law.The genesis of the rule was, it seems, satisfactorily described by Lord Templeman and its usefulness lies in the fact that it imposes a degree of certainty and reliability on the parties. Each knows from the outset what they have contracted for. Its failing lies in the fact that its operation, as Russell L.J. rightly pointed out, leads to a freely negotiated bargain being defeated. If the Law Commission does examine the rule then clearly the central issue will be the balancing of these two principles and which is to be given effect to. If the law wishes to see certainty and reliability in this area, then Lord Templeman's decision is undoubtedly welcome since the law was clearly in a state of flux and confusion before the case.     

Complicity and causality

This paper considers some aspects of the morality of complicity, understood as participation in the wrongs of another. The central question is whether there is some way of participating in the wrongs of another other than by making a causal contribution to them. I suggest that there is not. In defending this view I encounter, and resist, the claim that it undermines the distinction between principals and accomplices. I argue that this distinction is embedded in the structure of rational agency.