Levels of Generality in the Legal Reasoning of the European Court of Justice

The level of generality or of abstraction used to describe a precedent, a right, or the legislative intent behind a statutory provision or constituent purpose behind a constitutional provision can have a decisive impact on the outcome of a case. Characterising it in narrow terms has the effect of reducing the scope of decision of a judgment; conversely, a broader characterisation provides more leeway for a judge in a case to encompass its facts within the precedent, right or purpose in issue. The issue raised by the level of generality problem is the extent to which courts have a discretion or freedom of manoeuvre as to the level of generality they decide upon, and thus whether generality and abstraction are manipulable in the hands of judges and are not really predetermined by the legal sources in question or an established judicial method of interpretation. Uncontrolled judicial discretion of this kind is problematic from the point of view of the rule of law and democracy, especially when adjudication concerns constitutional provisions, the equivalent in the EU being interpretation by the European Court of Justice (ECJ) of the EU Treaties; reversal of ECJ interpretation through Treaty amendment is particularly difficult to achieve because it requires unanimous coordination by the Member States. This article examines two alternative ways of determining the correct or appropriate level of generality issue in ECJ interpetation, coherence or the legal traditions of the Member States, and argues in favour of the latter as a less subjective method. Application of the two alternative approaches is tested in two areas of EU law, state liability and criminal law.     

Lessons learned from inter-laboratory studies of carbon isotope analysis of honey

Forensic application of carbon isotope ratio measurements of honey and honey protein to investigate the degree of adulteration with high fructose corn syrup or other C₄ plant sugars is well established. These measurements must use methods that exhibit suitable performance criteria, particularly with regard to measurement uncertainty and traceability – low levels of adulteration can only be detected by methods that result in suitably small measurement uncertainties such that differences of 1‰ or less can be reliably detected. Inter-laboratory exercises are invaluable to assess the state-of-the art of measurement capabilities of laboratories necessary to achieve such performance criteria. National and designated metrology institutes from a number of countries recently participated in an inter-laboratory assessment (CCQM-K140) of stable carbon isotope ratio determination of bulk honey. The same sample material was distributed to a number of forensic isotope analysis laboratories that could not participate directly in the metrological comparison. The results from these studies have demonstrated that the majority of participants provided isotope delta values with acceptable performance metrics; that all participants ensured traceability of their results; and that where measurement uncertainties were reported; these were fit-for-purpose. A number of the forensic laboratories only reported precision rather than full estimates of measurement uncertainty and this was the major cause of the few instances of questionable performance metrics. Reporting of standard deviations in place of measurement uncertainties is common practice outside metrology institutes and the implications for interpretations of small differences in isotopic compositions are discussed. The results have also highlighted a number of considerations that are useful for organisers of similar inter-laboratory studies in the future.     

Prorogation and partisanship in Tasmania and South Australia

SUMMARY

The historical evolution of the Westminster Parliament left the constitutional power over the summoning, dismissal, and temporary suspension of that body in the hands of the sovereign. As ‘Westminster-style’ parliaments developed in Britain's colonies, this aspect of the prerogative came to be exercised by colonial governors. As ‘responsible government’ evolved in the eighteenth and nineteenth centuries, both at Westminster and in its progeny, conventions developed whereby the ministerial executive advised the Crown on the exercise of this aspect of the prerogative power. Thus, while prorogation is a perfectly legitimate, routinely used device in Westminster-style parliamentary systems, ministries sometimes use it as a partisan tool, as it provides the opportunity for the executive to manipulate the parliamentary calendar for political advantage. This study examines cases of just such ‘partisan political use’ of prorogation in the Australian states of Tasmania and South Australia. Conditions commonly associated with this type of use of prorogation in these two states are identified as: the existence of a proximate issue of a highly controversial or partisan nature; minority or near-minority status in the lower chamber; and a novel context leading to general uncertainty and higher than usual partisanship. In addition, a question is raised regarding whether the institution of a fixed-term parliament regime may increase the likelihood of a particular variety of partisan use of prorogation. The findings are situated in a comparative context.     

Analysing Local Policy Agendas: How Dutch Municipal Executive Coalitions Allocate Attention

Abstract

This article provides an analysis of the allocation of attention to policy problems on the local level, focusing on the executive agenda of six municipalities in the Netherlands over a 25-year period. It reveals that there is specifically a local politics of attention, showing differences between national and local policy agendas in specific policy areas. We did not find evidence that the political composition of the local executive coalitions leads to agenda differences, revealing the more problem-oriented and pragmatic nature of local politics. We did find evidence of an effect of institutional arrangements between national and local government on shifting patterns of attention, such as due to decentralisation. This shows that the local politics of attention is limited in scope and conditioned by the functions of local government and the institutional arrangements of policy making in the Dutch decentralised unitary state and that rearrangements affect these patterns of attention.     

Forensic Identification of CITES Protected Slimming Cactus (Hoodia) Using DNA Barcoding

Slimming cactus (Hoodia), found only in southwestern Africa, is a well‐known herbal product for losing weight. Consequently, Hoodia extracts are sought‐after worldwide despite a CITES Appendix II status. The failure to eradicate illegal trade is due to problems with detecting and identifying Hoodia using morphological and chemical characters. Our aim was to evaluate the potential of molecular identification of Hoodia based on DNA barcoding. Screening of nrITS1 and psbA‐trnH DNA sequences from 26 accessions of Ceropegieae resulted in successful identification, while conventional chemical profiling using DLI‐MS led to inaccurate detection and identification of Hoodia. The presence of Hoodia in herbal products was also successfully established using DNA sequences. A validation procedure of our DNA barcoding protocol demonstrated its robustness to changes in PCR conditions. We conclude that DNA barcoding is an effective tool for Hoodia detection and identification which can contribute to preventing illegal trade.