Debating Same-Sex Marriage: Lessons from <Emphasis Type="Italic">Loving</Emphasis>, <Emphasis Type="Italic">Roe</Emphasis>, and <Emphasis Type="Italic">Reynolds</Emphasis>

The United States Supreme Court, in its 2015 Obergefell v. Hodges decision, declared a constitutional right to same-sex marriage (SSM). With Republicans now controlling the Congress and presidency, and with value-traditionalists and ‘strict’ constitutionalists influencing the party’s legislative agenda and judicial nominees, Obergefell’s future and the contours of SSM rights are uncertain. Proponents assume the decision will delegitimate opponents, just as Loving v. Virginia (1967) accelerated the delegitimation of racial segregationists. SSM opponents counter with the Court’s 1973 Roe v. Wade ruling and argue that, like Roe, Obergefell undermines the democratic process, which is better suited to resolve a highly-charged moral dispute. Like Roe, Obergefell will not resolve the debate but, instead, trigger a durable opposition. We add a third possible path, drawing on the evolving public discourse on polygamy since the Supreme Court upheld prohibitions in Reynolds v. United States (1878). The politics of polygamy shows that, if SSM opponents are delegitimated, they may reemerge as legitimate participants in the public sphere. These paths offer insights into uncertainties, contingencies, and predictions regarding the durability of SSM resistance and other oppositional movements. They also lead to revisionist interpretations of the effect on public discourse flowing from these three seminal court decisions. The politics of interracial marriage (after Loving) shunned the losing political faction from the public forum, while those of abortion (after Roe), and, recently, polygamy, illustrate a more vibrant, pluralist model of deliberation. Whether SSM opponents will mimic a Roe model, or follow the trajectory of Loving or Reynolds, is now the question.     

The Protection of Confidentiality in Australian Family Law

This paper identifies and discusses the legislative provisions which protect confidentiality in family law proceedings in Australia. The purpose of discussing these protections is two‐fold: firstly, to identify the scope and operation of these protections for Australian legal practitioners; secondly, to allow comparison of Australian protections to those offered in other jurisdictions. This paper will consider duties of confidentiality and evidential privileges in the context of settlement negotiation, mediation, arbitration, lawyer‐client relationships and medical, counselling and other therapeutic relationships. The rationale for the protection of confidentiality in some of these relationships and circumstances, but not in others, will also be considered in an attempt to understand why it is so.     

Future of South Korea–Japan Relations: Decoupling or Liberal Discourse

South Korea–Japan relations are at their lowest point in decades, as colonial era disputes flare once again. Most pundits argue that the South Korean public is strongly united against Japan. We argue that South Korean elites are sharply divided over how to manage the crisis; this division is starting to impact how South Koreans understand colonial era narratives; and, long-term, bilateral relations depend on how these growing divisions play out. Despite state censorship, a rising counter-narrative in South Korea challenges the dominant, Manichaean, anti-Japanese one. For the first time, Korea and Japan have a realistic chance of reconciling based on liberal public discourse and a nuanced, empirically based understanding of history.     

Workplace Monitoring and the Right to Private Life at Work

In Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. The decision establishes that there is an irreducible core to the right to private life at work that does not depend on an employee's reasonable expectations of privacy, and sets out clear principles for striking a fair balance between Article 8 and the employer's interests in the context of workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.     

Revisiting the governance of privacy: Contemporary policy instruments in global perspective

The repertoire of policy instruments within a particular policy sector varies by jurisdiction; some “tools of government” are associated with particular administrative and regulatory traditions and political cultures. It is less clear how the instruments associated with a particular policy sector may change over time, as economic, social, and technological conditions evolve. In the early 2000s, we surveyed and analyzed the global repertoire of policy instruments deployed to protect personal data. In this article, we explore how those instruments have changed as a result of 15 years of social, economic and technological transformations, during which the issue has assumed a far higher global profile, as one of the central policy questions associated with modern networked communications. We review the contemporary range of transnational, regulatory, self‐regulatory, and technical instruments according to the same framework, and conclude that the types of policy instrument have remained relatively stable, even though they are now deployed on a global scale. While the labels remain the same, however, the conceptual foundations for their legitimation and justification are shifting as greater emphases on accountability, risk, ethics, and the social/political value of privacy have gained purchase. Our analysis demonstrates both continuity and change within the governance of privacy, and displays how we would have tackled the same research project today. As a broader case study of regulation, it highlights the importance of going beyond technical and instrumental labels. Change or stability of policy instruments does not take place in isolation from the wider conceptualizations that shape their meaning, purpose, and effect.     

Charlottesville Paradox: The ‘Liberalizing’ Alt-Right, ‘Authoritarian’ Left,and Politics of Dialogue

In the aftermath of the 2017 Charlottesville tragedy, the prevailing narrative is a Manichean division between ‘white supremacists’ and ‘anti-racists’. We suggest a more complicated, nuanced reality. While the so-called ‘Alt-Right’ includes those pursuing an atavistic political end of racial and ethnic separation, it is also characterised by pluralism and a strategy of nonviolent dialogue and social change, features associated with classic liberalism. The ‘Left,’ consistent with its historic mission, opposes the Alt-Right’s racial/ethnic prejudice; but, a highly visible movement goes farther, embracing an authoritarianism that would forcibly exclude these voices from the public sphere. This authoritarian element has influenced institutions historically committed to free expression and dialogue, notably universities and the ACLU. We discuss these paradoxes by analysing the discourse and actions of each movement, drawing from our study of hundreds of posts and articles on Alt-Right websites and our online exchanges on a leading site (AltRight.com). We consider related news reports and scholarly research, concluding with the case for dialogue.     

FIFTY YEARS LATER: THE LEGACY OF THE CIVIL RIGHTS ACT OF 1964

This paper assesses the legacy of the Civil Rights Act over the past 50 years, reviewing its history, scope, and impact on wage, employment, and segregation outcomes of the Act's five protected classes. In addition to improving outcomes for protected classes, the Act launched a period of expanded civil rights legislation and established a framework that allows expansion of coverage through judicial interpretation without requiring passage of new laws. Applications include prohibiting sexual harassment as a form of sex discrimination and protection against color discrimination separately from race discrimination, which may be increasingly salient with increased immigration and with a multirace population.