Women's law: methods,problems, values

Conclusion The five areas of women's law that I have chosen to focus — money law, housewives' law, paid-work law, criminal law and birth law — represent different coordinating perspectives on women's legal position. These perspectives could certainly have been supplemented by others, for example, discrimination law. The feminist perspective can also be used in several traditional areas of legal science e.g., social insurance law, tax law, family law etc. I, however, have chosen a problematic other than the traditional one: first, to underline the importance of theory through the development ofconcepts anddiscussions of values in women's studies in general; and second, to indicate the especial fields in focus within the Institute of Women's Law at the University of Oslo. Through the perspective discussed in this article we think that we are on our way to describe, explain and understand women's legal status. The fundamental aim is to improve women's position both in law and society.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

Caremark Compliance for the Next Twenty‐Five Years

One of the most influential cases in corporate governance is In re Caremark International Inc. Derivative Litigation (Caremark). In 1996, Caremark imposed a novel duty on boards of directors to make a good faith attempt to implement and exercise oversight over obligations leading to liability. Breach of this minimal duty has been difficult for plaintiffs to plead and prove, and the case law is littered with dismissed Caremark lawsuits. As Caremark's reign reaches a quarter‐century, however, its duties are primed to evolve. Two cases, Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation, took the rare step of allowing Caremark claims to survive motions to dismiss. These cases signal a new understanding of Caremark obligating boards not merely to attempt oversight, but to ensure proactively that such oversight is effective. This subtle but significant change in board duties is one to which the academic literature should respond. This article first reviews the Marchand and Clovis cases and argues that these cases hold significance for the future of Caremark claims. Second, this article studies client advisories from law firms and other sources that evaluate the Clovis and Marchand cases. It finds that while these advisories offer useful tactical responses, they lack strategic advice that would benefit boards over the long term. Filling the gap, this article presents long‐term strategic advice for boards not only to meet Caremark duties but also to thrive as exemplars of good governance and ethical leadership for the next twenty‐five years.     

Social science and the Courts

Social scientists have increasingly become involved in the submission of amicus curiae or friend of the court briefs in legal cases being decided by state and federal courts. This increase has triggered considerable debate about the use of briefs to communicate relevant social science research. This article evaluates the strengths and weaknesses of various methods of summarizing social science research for the courts. It also reviews the procedures for submitting briefs developed by the American Psychology-Law Society which, in collaboration with the American Psychological Association, has submitted its first brief inMaryland v. Craig, a case recently decided by the U.S. Supreme Court.The authors wish to thank James Ogloff, Kathy Roesch, and Claudia Worrell for their comments on an earlier draft     

Twenty-Five Years of <Emphasis Type="Italic">Social Science in Law</Emphasis>

In this essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed—sometimes radically—are the substantive legal questions on which social science has been brought to bear.     

Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

The new science and engineering management: cooperative research centers as government policies,industry strategies,and organizations

Cooperative research centers (CRCs) are key mechanisms for national and subnational governments and private industry for achieving social and economic outcomes with science and technology. Despite growing policy and scholarly interest in the management and productivity of CRCs, their complex and variegated nature has led to limited and inconsistent understanding of CRCs. In this introduction to this Special Issue of The Journal of Technology Transfer, we discuss the impetuses for and embodiment of CRCs as government policies, industry strategies, and organizations and thus address a number of unexplored aspects of CRCs that are important to decision making for both policy and management. Of note, we discuss the lack of definitional clarity regarding CRCs and introduce criteria for distinguishing CRCs from other organizations. We conclude by introducing the article contributions, which are international in scope and address CRCs from multiple theoretical perspectives and levels of analysis, and by discussing areas for future research.     

Law reform across the commonwealth: A new voice

This article examines the proviso to the ‘alternative remedies’ provision/clause in Commonwealth Caribbean constitutions. It does so from two perspectives emerging from the jurisprudence of the Judicial Committee of the Privy Council in this area. In the first, exemplified by Harrikissoon v Attorney General, the applicant brings a constitutional motion for infringements of his fundamental rights or freedoms in circumstances where he may have an alternative remedy at common law or under statute. In that decision, the Privy Council delineated the scope of this proviso under the Constitution of Trinidad and Tobago, effectively importing an ‘alternative remedies’ clause from the use of the word ‘may’ in section 14(2) of the Constitution. This article examines, first, what Harrikissoon decided; second, whether its reasoning is acceptable given the wording of the section; and, third, the limitations accepted by subsequent decisions of the Privy Council. In the second perspective, the applicant makes a similar application for infringements of his fundamental rights or freedoms arising from or occurring during the course of proceedings already begun. The locus classicus is the decision of Chokolingo v Attorney General and forms part of the wider concern of the courts to prevent its processes being abused where the applicant makes a collateral constitutional challenge rather than pursuing an ordinary appeal. This article also aims to examine the decisions that pre‐dated Chokolingo in order to understand its jurisprudential underpinnings; to explore that decision to determine what the Privy Council in Chokolingo decided; to consider the similarities and differences between the reasoning therein and that of the Privy Council in Harrikissoon; and to consider the extent to which the principle enunciated in Chokolingo has been extended or limited in subsequent decisions of the Privy Council.     

Measuring Reed’s Reach: Content Discrimination in the U.S. Circuit Courts of Appeals After Reed v. Town of Gilbert

Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not been the basis of any First Amendment revolution. Indeed, the research supports the conclusion that many circuit courts seem to be actively working to narrow Reed’s reach. Moreover, the article concludes that Reed did little to clarify — and in some ways made worse — what has been a problematic doctrine for decades.     

The Application of Human Rights Law to Everyday Civilian Life Under Rebel Control

This article draws upon social science literature to offer a new assessment of the normative value of human rights law vis-à-vis international humanitarian law in territory under armed groups’ control. In particular, the article considers how the two bodies of law can be applied in a complementary manner to regulate the everyday life of civilians who are not involved in hostilities. The article demonstrates that while it might be tempting to imagine that concerns relating to rights such as the freedom of movement, the right to work or protection from common crime are completely displaced by considerations of physical security and survival in times of armed conflict, in reality this is often not the case.

     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

EXPANDING COLLABORATIVE DIVORCE THROUGH THE SOCIAL SCIENCES

Since collaborative law was first proposed, collaborative practitioners have expanded its concepts and methods as it has grown in acceptance by professionals and the public. This article addresses how collaborative law can further expand its theoretical and practical base by drawing from social science perspectives on negotiation, conflict resolution and third‐party interventions. It also explores how collaborative practice draws upon two prevailing models of negotiation, the strategic problem‐solving and the social‐psychological model, and demonstrates how tools from each model can be used at different points in a collaborative case's lifecycle.     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

The upturned stone: Political scandals and their investigation processes in twenty democracies

This article considers the very considerable research problems facing any attempt at the logical definition, systematic classification and coding of the many varieties of political scandal. Examples of these difficulties are drawn from a new classification scheme devised by the author. This scheme is used to analyze a major new source:Political Scandals and Causes CélèbresSince 1945: An International Reference Compendium (Longmans, UK 1990). From it 146 narrative case histories from twenty democratic systems have been taken for analysis. More detailed notes on problems of processing scandal cases into such simple statistical form follow on. The cases themselves are listed in very brief coded form in the Appendix, and four tables set up the analytical scheme and its statistical product. The article concludes with a number of suggestions for future research, if academic analysis of this always-interesting, but horribly slippery, aspect of politics, government and social mores is to be pursued.     

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.     

Development of the lost pleasure of life scale

The concept of hedonic damages for loss of pleasure of life has been developed by forensic cases up to and includingMolzof v. United States (1992). One instrument available for assessment in this area, the Lost Pleasure of Life (LPL) scale, was refined through development of a rating matrix consisting of 37 behavioral anchors which experts had categorized into progressive levels of loss. Using brief instructions and case examples, mental health clinicians rated 15 written vignettes for loss of pleasure of life resulting from physical injuries. Results indicated moderate reliability (ICCR=.65 to .70) and moderately high correlation (r.86) between rank orderings of the case vignettes based on LPL ratings given by the clinicians and on financial awards for each case given by undergraduate students.This article is based on the first author's dissertation for which the second author served as chair.     

Making sense of the case law on Ombudsman schemes

This article analyses the case law on ombudsman schemes in the UK, with the purpose of identifying some of the key trends that underpin this branch of law pre-the first Supreme Court decision in this area, JR55 v Northern Ireland Commissioner for Complaints. While the law on ombudsman schemes remains based on legislation and the various grounds of administrative law available in judicial review, distinct bespoke principles have also been relied upon. These principles are beginning to provide consistent guidance on how the law should be used and interpreted in cases involving an ombudsman scheme. One task of the Supreme Court in JR55 will be to confirm these principles, or rationalize any departure from them.     

Liability for sexual harassment in criminal justice agencies

This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.     

Judging a Judge: A Reappraisal of Lord Mansfield and Somerset’s Case

This article presents an occasion on which moral judgement can, and should, take place. When the chief justice of the court of king’s bench – William Murray, first earl of Mansfield – was presented with the case of Somerset v Stewart in 1772, he was presented with choices that unveiled aspects of his character. By first establishing the ambiguity of the legal context and the multifarious political pressures that preceded Somerset’s case, this article identifies the extent of Lord Mansfield’s ‘room for manoeuvre’ with respect to three elements of his conduct: the delay and reluctance in making a decision, the choices regarding the substantive decision and the manner of expressing that decision. To what extent did Mansfield have freedom of action, and how did he exercise it? Are those free actions worthy of praise or condemnation? Through an essential questioning of previous historians’ assumptions and omissions, this article sharpens the strokes through which a complex portrait of Mansfield may be rendered.