The Implementation of European Anti‐Discrimination Directives: Converging towards a Common Model?

This article examines the impact on national law and policy of two Directives on combating discrimination adopted by the EU in 2000. It considers the extent to which their transposition has resulted in the 'Europeanisation' of anti-discrimination law and whether this implies convergence in the direction of a common model. Two themes are examined: the list of protected grounds of discrimination and the creation of equality institutions. All 27 states have introduced legal reforms in response to the Directives and a loose level of convergence can be identified. Nevertheless, specific national traditions have proved resilient, for example, shaping the meaning attached to terms such as 'disability' or the structure and powers of equality bodies.     

TOWARDS A BETTER PUBLIC LAW?

In the UK Constitution, the major weapon of judicial control over the exercise of governmental power is provided by the action for judicial review. This action serves to keep public bodies within the scope of the powers conferred on them by law. Prior to the present Law Commission inquiry into procedural aspects of judicial review, the matter was last examined in 1977 since when there have been significant changes in the ways in which governmental power is exercised and controlled. This article takes as its focus the Law Commission's Report No.226 Judicial Review and Statutory Appeals and examines specific proposals contained therein arguing that, underlying the reforms, there exists no coherent vision of the future role of public law. Instead, what is revealed is a confused cocktail of measures in which the tension between the legitimate needs of public administration and the opposing requirement that government act according to law remains unacknowledged and thereby unresolved. There is, moreover, a disappointing failure to evaluate the experience of public law procedures found in other jurisdictions. In response to these perceived deficiencies, the authors set out an alternative and principled account of judicial review, the central feature of which is to ensure that public power is subjected to an appropriate degree of judicial scrutiny. This alternative account is later used to inform arguments about specific reforms. In this regard, the valuable experience of other jurisdictions'public law procedures is also drawn upon.     

Forensic Methods and Procedures Applied to Child Custody Evaluations: What Judges Need to Know in Determining a Competent Forensic Work Product

Judges are seeing an increase in the number of forensic reports in the area of child custody. This increase in forensic mental health involvement suggests that judges need to better understand the application of current forensic mental health methodology to assist them in determining a competent forensic work product. Recent literature has argued that child custody evaluators need to craft their reports consistent with scientific methods and procedures as well as legal standards governing admissibility of scientific evidence. This paper provides a framework for judges to assist in determining whether a child custody evaluation has been crafted consistent with current behavioral science literature pertaining to use of forensic mental health methods and procedures.     

From Communism to Confucianism: China's Alternative to Liberal Democracy

Buoyed by its creditor's hold on the United States and its ability to withstand the harsh winds of recession blowing from across the Pacific, China has graduated in its own mind from an emerging economy to a world power. From their confrontation with Google to their renewed repression of dissidents to their dissing of President Obama, China's leaders clearly feel that the time has come for the world to accomodate China, not vice‐versa. Is the West ready for this new reality? Is China's new arrogance well‐founded, or is it going to be the next bubble to burst? As it moves beyond “the primary stage of socialism” is it ready to open up politically? In this section, some top China scholars, one of China's most well‐known dissidents and a former US spy chief discuss these issues.     

GOVERNANCE WITHOUT GOVERNMENT? THE CASE OF THE FOREST STEWARDSHIP COUNCIL

The relationship between state and non‐state actors has been the subject of extensive debate within the governance literature. During this time two influential but very different accounts of governance have emerged: a society‐centred account which talks of governance without government and a state‐centric perspective which maintains that governance largely occurs by and through governments. There are of course alternative and more nuanced positions on offer. These two have nevertheless served to frame the debate around governance by engendering a zero‐sum understanding of the relationship between state and non‐state actors which obscures the way in which the presence of non‐state actors can enhance the policy capacities of state actors and vice versa. The Forest Stewardship Council (FSC) has been lauded as an exemplar of governance without government and has indeed, on occasions, had to overcome the indifference or even outright hostility of governments. But the society‐centred account does not do justice to the range of very different and sometimes mutually beneficial relationships between the FSC and state actors.     

ON IRON CAGES AND SUBOPTIMAL CHOICES: AN EXPERIMENTAL TEST OF THE MICRO-FOUNDATIONS OF ISOMORPHISM IN THE PUBLIC SECTOR

This study integrates experimental and qualitative data from a sample of public employees to investigate the micro-foundations of the isomorphic pressures that may lead to suboptimal decision making in the context of public administration. When asked to choose between two equally performing systems, subjects in our sample were inclined to favor the alternative that was encouraged by either a coercive, a mimetic, or a normative pressure. Participants tended to give in to isomorphic pressures, even when informed that the encouraged option was inferior. However, letting subjects autonomously infer the inferiority of the encouraged option from numerical data—rather than through an explicit textual prompt—proved effective in neutralizing the risk of sub-optimal decisions under isomorphic pressures. A consequent qualitative inquiry revealed that trust in the recommending institution or group, speculation about alternative performance dimensions, and compatibility with existing standards were the main drivers of suboptimal decision making.