Accommodating Intersexuality in European Union Anti‐Discrimination Law

This article considers the relationship between EU anti‐discrimination law and intersexuality. Recent changes in German legislation that recognise intersexuality have prompted consideration of sex and gender throughout Europe. This article considers some of the disadvantages in the way the German legislation has been adopted and attempts to remedy them through the existent Recast Directive. The article rejects the current binary approach to sex and gender and recommends a broader interpretation that understands sex as a spectrum or continuum. It concludes that anti‐discrimination law may be a more suitable realm for questions of intersex to be raised than mandatory state documentation. Anti‐discrimination law is preferable, it is submitted, because it offers individuals an opt‐in model, which does not require any medical ‘proof’. Similarly, anti‐discrimination law offers activists a fluid site of resistance that is not based on medicine or the potential fixity of the birth certificate.     

Schauer's Anti‐Essentialism

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti‐essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false.     

Confronting Racial Discrimination: A CERD Perspective

From the perspective of a member of the Committee on the Eliminationof Racial Discrimination this article provides an overview ofthe implementation of the International Convention on the Eliminationof All Forms of Racial Discrimination. The article reviews thework of the Committee in endeavouring to fulfil a difficultmandate by ensuring that the Convention remains relevant, andalso demonstrates how, through mechanisms such as its concludingobservations and general recommendations, the Committee continuallyendeavours to address the contemporary meaning of racial discriminationas used in the Convention.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Legitimating Racial Discrimination: Emotions, Not Beliefs, Best Predict Discrimination in a Meta-Analysis

Investigations of racial bias have emphasized stereotypes and other beliefs as central explanatory mechanisms and as legitimating discrimination. In recent theory and research, emotional prejudices have emerged as another, more direct predictor of discrimination. A new comprehensive meta-analysis of 57 racial attitude-discrimination studies finds a moderate relationship between overall attitudes and discrimination. Emotional prejudices are twices as closely related to racial discrimination as stereotypes and beliefs are. Moreover, emotional prejudices are closely related to both observed and self-reported discrimination, whereas stereotypes and beliefs are related only to self-reported discrimination. Implications for justifying discrimination are discussed.

Anti‐suit Injunctions and the Doctrine of Comity

Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.     

美国刑事诉讼中基于种族歧视的追诉

在美国的刑事诉讼中,种族歧视很早就存在并且受到了司法的关注。美国司法以此类诉讼为基础,建立了基于种族的选择性起诉理论。基于种族歧视的选择性起诉在20世纪末伴随着民权运动和"肯定性行动",曾经一度出现了抗辩的高潮,但"9.11事件"后重新陷入低谷。     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

Sentencing and State‐Level Racial and Ethnic Contexts

Sentencing studies have incorporated social context in studying sentencing decisions, but to date the bulk of prior work has focused almost exclusively on county context. An unresolved question is whether there also may be state‐level effects on sentencing. Drawing from the minority threat perspective, we examine (1) whether state‐level racial and ethnic contexts affect sentencing, (2) whether this effect amplifies the effect of county‐level racial and ethnic contexts on sentencing, and (3) whether the interaction of county‐level and state‐level contextual effects is greater for minorities than for whites. Analysis of State Court Processing Statistics and other data indicates that state‐level racial and ethnic contexts are associated with sentencing outcomes and that this effect may differ by outcome (e.g., incarceration versus sentence length) and by type of context (e.g., racial or ethnic). The study's findings and their implications are discussed.     

Perceived Discrimination Among Women in Law Enforcement

ABSTRACT

This work explores the depth and dimensions of gender-based discrimination as perceived by female police officers. Using snowball sampling, 27 currently employed female law-enforcement officers in a large metropolitan area of the Southwest were interviewed. Qualitative data analysis techniques were used to analyze the findings and to extract the themes that emerged from the women's perceptions of discrimination coming from their male peers, from male supervisors or administrators, and from citizens of both sexes. Most of thepolicewomen interviewed reported experiencing discrimination from one or all of these sources. However, almost without exception, they saw their situation today as improved over that of the past policewomen. No consistent differences in perceptions emerged related toage, race-ethnicity, rank, employer, or length of service.     

试论就业歧视及其公法规制

就业歧视既是经济问题、社会问题,更是法律问题。当前我国普遍存在的就业歧视问题之根源在于市场经济条件下用人单位效益至上价值原则与劳动者平等就业价值理念两者之间的难以趋同,是当今法律面对的一种尴尬。国家对单位用人自主权进行公法意义上的规制是社会本位理念下的现代劳动法发展趋势之所在,制定反就业歧视法应作为完善劳动立法的一个重要方面。通过立法进一步明确平等就业的权利保障机制和违法救济措施,以期消除就业歧视、引导和推动我国劳动就业市场健康向前发展。     

Anti‐Imperialism: Generating Universal Human Rights out of Local Norms

To counter possibilities for human rights as cultural imperialism, (1) I develop a notion of human rights as culturally particular and valid only locally. But they are an increasingly generalizable particularism. (2) Because the incommensurability of different cultures does not entail an uncritical tolerance of just about anything, but rather allows for an objectivating stance toward other communities or cultures, locally valid human rights have a critical capacity. (3) Locally valid human rights promote a community's self‐representation and thus allow for diversity, rejecting the coercive (mis)representation of a community or culture as incapable of representing itself.