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.     

Recent developments

THE COMPANY EXECUTIVE AND THE LAW, by David Springfield, published by Heinemann. (1970) at £1. 15s. (£3. 3s., hardback). 296 pp.

CONTRACT, by F. R. Davies, published by Sweet and Maxwell (Concise College Texts series) (1970) at £1. 1s. (paperback), 233 pp.

LABOUR ORGANISATIONS: A MACRO AND MICRO SOCIOLOGICAL COMPARISON, by Mark Van de Vall, published by Cambridge University Press (1970) at £2. 15s. 257 pp.

THE LAW OF TORT IN LOCAL GOVERNMENT, by Mary Bell Cairns, published by Shaw &; Sons (2nd. ed., 1970) at £4. 4s. 272 pp.

INDUSTRIAL LAW NOTEBOOK, by Norman M. Selwyn, published by Butterworths (1970) at 12s. 81 pp.

QUESTIONS AND ANSWERS ON THE LAW OF MEETINGS by R.S. Sim, published by Butterworths at 10s. 80 pp.

DECISION ON EUROPE, by Derek H. Hene, published by Jordan &; Sons (1970) at £2. 15s. 224 pp.     

Susan Gellman has it right

Michael Tonry, Sentencing Matters (New York: Oxford University Press, 1996, 240pp.     

The Journey to Comprehensibility: Court Forms as the First Barrier to Accessing Justice

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The article explores the comprehensibility of court forms by providing a quantitative overview...     

The problems of ‘nation‐building’: imposing bureaucratic ‘rule from above’

With the problems of stabilising Iraq continuing under the ‘fully sovereign’ Iraqi interim government, which formally replaced the United‐States‐led transitional administrative authority on 28 June 2004, many critics have argued that the United Nations (UN) should play a much larger role in the transition process. This article suggests that while imposing an alternative set of external administrative ‘advisers’ might be popular with European powers, it is unlikely that greater UN involvement would make much difference to the people of Iraq. Using the example of the international protectorate of Bosnia, which is also a ‘fully sovereign’ state, where the UN plays a fully engaged role, it is clear that external enforcement can provide little legitimacy for Iraqi institutions. This article challenges the idea that the ‘rule of law’ can be imposed from outside by focusing on two areas of legal activism in Bosnia: constitutional change and property return. It suggests that the ‘rule of law’ approach sees legal or administrative solutions as a short cut to addressing political problems, fetishising the legal framework at the same time as marginalising the political sphere. Rather than more coercive external involvement in the form of pressures for more legislation and better law enforcement, the experience of Bosnia highlights the need for greater levels of political legitimacy, a need that runs counter to the logic of the ‘rule of law’ approach.     

Human dignity in concept and practice

Policy Sciences - Dignity seems to be something that virtually all people want. It is a seminal expression of the human experience that gains authority through the convergent demands of people...     

A unified model of settlement and trial expenditures: The Priest–Klein model extended

Settlement and trial expenditures are crucially interrelated. The literature on settlement, however, takes no account of models of trial. In this paper, we develop a unified model of settlement and trial expenditures. We do this by discarding the usual assumption of settlement models that trial costs are constant across cases. Instead, we follow the literature on trial by permitting trial costs to vary with the legal merit of the plaintiff's case. Our approach can be used to extend standard models of settlement such as the well-known Priest–Klein model as well as models based on asymmetric information. As a demonstration, we extend the Priest–Klein model and generally overturn that model's canonical results. In particular, we show that even in a fully symmetric model, predicted win rates at trial can deviate substantially from 50 percent. Furthermore, win rates will vary in response to legal reforms that shift the decision standard.     

Under the quasi-judicial state: H-1B employment rights in an era of judicial retrenchment

Foreign workers holding H-1B visas gained recourse to federal employment rights under the Immigration & Nationality Act (INA) for the very first time when Congress passed the Immigration Act of 1990 (IMMACT90). This paper examines H-1B employment rights enforcement under the INA as it has intersected with broader features of the American legal system: what political scientists call judicial retrenchment and the quasi-judicial state. I first show how H-1B rights, already limited by the domestic politics that shaped the IMMACT, became subject to judicial retrenchment when the federal courts confined H-1B disputes under the INA to the quasi-judicial state at the Department of Labor (DOL). I then use published data on DOL investigation outcomes, published and unpublished administrative case records, and judicial cases reviewing agency action to examine the extent to which and how H-1B workers can use the quasi-judicial state to solve workplace problems. My empirical findings contribute to a new understanding of the relationship between rights retrenchment, the judiciary, and the rise of alternatives to court in immigration and employment law and point to possible fine-grained changes for future immigration reform.