Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial-Reasoning

Judicial obligation to enforce the law is typically regarded as both unproblematic and important: unproblematic because there is little reason to doubt that judges have a general, if prima facie, obligation to enforce law, and important because the obligation gives judges significant reason to limit their concern in adjudication to applying the law. I challenge both of these assumptions and argue that norms of political legitimacy, which may be extra-legal, are irretrievably at the basis of responsible judicial reasoning.     

Share repurchase regulations: Do firms play by the rules?

Open market share repurchases are strictly regulated to prevent managers from taking advantage of selling shareholders. We examine compliance with these rules in France, where the mandatory disclosure of share repurchases provides detailed information on repurchases actually undertaken. Using a database containing 36,848 repurchases made by 352 French firms over the period 2000–2002, we show that very few firms fully comply with the regulations for all their buybacks. We document that illegal repurchases before earnings announcements are the most detrimental to selling shareholders.     

Why Does the State Keep Coming Back? Neoliberalism,the State and the Archeon

In this essay I argue that the distinction between neoliberalism and the Westphalian order that is said to precede it (along with populism, authoritarianism and other contemporary phenomenon) are all facets of one and the same phenomenon: archism. Archism is a style of politics based on rule and division. Looking at the work of Derrida, Foucault and Benjamin, I examine the inner workings of archism and how it can be resisted. Above all, I consider the notion of the ‘archeon’; that privileged perch from which the state or law can judge without itself being subject to that judgment. The archeon, I argue is the central node of archism that allows itself to insinuate into any number of myriad forms without appearing to be the same phenomenon. By looking at the way Benjamin subverts the theological origins of the archeon with the idea of a God who abandons the position of judgment, I show a model for how to think differently about archism such that we do not seem eternally fated to choose between the same false dichotomies over and over again.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

Access to Documents,Accountability and the Rule of Law—Do Private Watchdogs Matter?

: The ECJ has not so far developed a single, consistent approach to cases in which the right to access official documents is exercised by individuals and organisations pursuing their individual cause (private watchdogs). While in some cases the Luxembourg jurisprudence has followed a restrictive approach, supporting interests and secondary law provisions conflicting with transparency, in other it has unconditionally endorsed a supreme character of the access right. This contribution confronts both of the approaches whenever the access right exercised by private watchdogs has clashed with confidentiality stemming from secondary law provisions: from state aid, staff rules, data protection, antitrust and beyond. The article argues that most often the judicial standard restricting the access right interferes with a feedback relationship between transparency, accountability and the rule of law. This relationship, when properly construed and appraised, may form a basis for an arguably more uniform and stable judicial standard.     

May,Should, or Do,Administrative Judges Participate in the Management of the Public Sphere in the Rule of Law?

The article concerns the actual impact of courts controlling the activity of public administration on the direction of its activities and the content of issued decisions. In particular, it concerns sovereign individual decisions that affect the sphere of civil rights and freedoms. The aim of the article is to seek an answer to the question of whether independent judges actually participate in the process of management in the public sphere, which is characterised by elements of politics and (regardless of the answer to this question) whether such participation is allowed or (even) necessary in modern rule of law states. The main argument is that regardless of whether the courts controlling the administration have reformatory or exclusive cassation powers, they influence the decision-making process in the public sphere. At the same time, such influence not only does not violate the fundamental values of the rule of law, but is even sometimes necessary. This does not mean that courts should interfere in the management processes in the public sphere in every case.

     

‘Cultural Criminology,Governmentality and the Liquidity of the Failing State: The View from Ireland’ for Critical Criminology

A number of incidents and community movements in the post-economic growth era have come to shape understandings of the Republic of Ireland’s marginalised groupings. These groups exist in both urban streetscapes and rural communities; all have come to represent a new culture of transgressive resistance in a state that has never completely dealt with issues of political legitimacy or extensive poverty, creating a deviant form of ‘liquid modernity’ which provides the space for such groupings to exist. The article demonstrates that the prevailing ideology in contemporary, post-downturn Ireland have created the conditions for incidents of ‘cultural criminology’ that at times erupt into episodes of counter hegemonic governmentality. The article further argues that these groups which have emerged may represent the type of transgressive Foucaultian governmentality envisaged by Kevin Stenson, while they are indicative of subcultures of discontent and nascent racism which belie the contented findings of various affluence and contentment surveys conducted during the years of rapid growth. The paper develops this theme of counter-hegemonic ‘governmentality’, or the regional attempts to challenge authorities by local groups of transgressors. The paper finally argues that, in many ways, the emergence of a culture of criminality in the Irish case, and media depictions of the same, can be said to stem from the corruption of that country’s elites as much as from any agenda for resistance from its beleaguered subcultures.     

Lawyers,CABx and the Community Legal Service: A new dawn for social welfare law provision?

This article explores the prognosis for social welfare law provision in the light of the government's plans for the Community Legal Service. It considers whether the involvement of both the advice sector and the traditional legal profession can provide the basis for stable and comprehensive provision of social welfare law. I conducted in-depth interviews with CAB workers and local solicitors in the large conurbation served by two CABx who participated in the non-solicitor franchise pilot in 1997. The research focused on the relationships between the legal service providers and the impact of the franchise operation on the CAB. Although harmonious relationships were found to be largely intact at a local level, the franchise raised considerable tension within the CABx that must serve as a cautionary note to any optimism about 'establishing the Community Legal Service'.     

When Do Challengers Succeed? Nongovernmental Actors,Administrative Agencies,and Legal Change: Shifting Rules for Oregon's Private Forests

Regulatory regimes are notoriously resistant to change, so when less powerful actors manage to reshape long‐established rules and gain increased access to a natural resource the interesting question is why? This article investigates relations between different claimant groups and the state in the reshaping of the regulations governing Oregon's private forestlands, how this process was mediated by broader political opportunities and constraints, and the conditions that supported a shift in the legal regime that benefited less advantaged interests. The intent is to deepen our understanding of the circumstances under which well‐established rules of governance are altered. Analysis points to each of the following variables as significant for successful reform: (1) active challengers and their success in reframing issues to support their goals, (2) new political opportunities facilitating wider participation in the rulemaking process, and (3) concurrence between local and national aspirations supporting reform. While each condition is noteworthy, it is insufficient on its own. Rather, my study comparing two contested administrative rules suggests that a clear alignment of all three variables provides the strongest impetus for legislative and administrative rule changes at the state level benefiting less advantaged interests.     

“Tort Tales” and TV Judges: Amplifying,Modifying, or Countering the Antitort Narrative?

This article joins the debate about the popular pervasiveness of antitort and antilitigation attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered by reality‐based television judge shows. Given the persistent debate about tort reform and scholars' recognition of the role played in this debate by simplified narratives about the legal system, we analyze whether reality‐based TV judge shows as a genre contribute to the creation and dissemination antitort and antilitigation sentiment. Earlier studies led us to hypothesize that TV judge shows would largely support the antitort and antilitigation narratives. After coding over 55 hours of such shows, however, we conclude that they do not adopt this narrative. Rather, these shows present a view of the civil law system that largely treats plaintiffs' claims as legitimate and showcases the majority of defendants as wrongdoers. In spite of this, we argue that the particular dramatic qualities of TV judge shows limit their potential to serve as a strong counternarrative to antitort and antilitigation stories.     

The Consequences of Kadi: Where the Divergence of Opinion between EU and International Lawyers Lies?

The divergence of opinion between EU and international lawyers as to the consequences of the Kadi/Al Barakaat judgment is likely to remain for the foreseeable future. While international lawyers focus their analysis on the constitutional role of the UN Charter in international law, EU lawyers seek to assert the autonomy and primacy of the EU treaties. The aim of this article is to analyse where the divergence between the two perspectives can be found. The judgment of the European Court of Justice cannot be interpreted as questioning the authority of the Security Council in discharging its duties for the maintenance of international peace and security. The consequences of the General Court's case‐law as regards the EU autonomous list of terrorists should be borne in mind when faced with the implications of Kadi/Al Barakaat. It is not justified that the level of protection to the individuals or entities affected by targeted sanctions should depend on the legal framework in which the restrictive measures have been adopted (UN or EU), or on the margin of discretion left to the EU Member States by the Security Council.     

Energy Crime,Harm, and Problematic State Response in Colorado: A Case of the Fox Guarding the Hen House?

Crime related to energy extraction is an emerging area of interest among green and critical criminologists. This paper contributes to that developing work by examining the political economy of harm and crime associated with the oil and natural gas industry in rural Colorado. Specifically, we examine problematic state regulatory response to citizens’ complaints regarding a range of harms caused by private industry (e.g., water pollution, adverse human health consequences, and domestic livestock death). In this paper, we draw on content analysis of formal complaints filed by citizens to the state, ethnographic work, and intensive interviews with citizens seeking relief from problematic or abusive industry practices. Our analysis illuminates how the state documents these practices, how citizens experience them, and how the state dilutes and deflects the externalities of energy extraction to produce additional harm.     

The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case‐law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a global assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.