Showing papers on "Common law published in 2014"

Professional Construction of Law: The Inflated Threat of Wrongful Discharge

Abstract: Institutional theories of organizational behavior consistently implicate the professions in explaining the diffusion of new organizational practices, yet there has been little empirical study of precisely what role the professions play. We address that issue by exploring the role of the personnel and legal professions in shaping employers' understandings of law and the threat posed by law. We focus on the implied contract theory of wrongful discharge,a recent common law development that allows employees - under a limited set of circumstances - to sue their employers when they are fired without good cause. We first present an analysis of the actual risk posed by the implied contract theory, based on a survey of published cases in six states. Then, by analyzing articles in professional personnel and Jaw journals, we reveal a striking disparity between the actual threat posed by implied contract theory and the threat as constructed by personnel and legal professionals. Our findings support the argument that the professions play an important role in the diffusion of organizational practices and suggest that the professions' constructions of the environment may critically affect how employers respond to environmental threats.

The New Terrain of International Law: Courts, Politics, Rights

Abstract: List of Illustrations ix Case Study Index xi Preface xv List of Abbreviations xxv PART I: Delegating Authority to International Courts, a Global View 1 Chapter 1: The New Terrain of International Law: Courts, Politics, Rights 3 Chapter 2: International Courts Altering Politics 32 Chapter 3: The New International Courts 68 Chapter 4: World History and the Evolving International Judiciary 112 PART II: International Courts in Action 161 Chapter 5: International Dispute Settlement 163 Chapter 6: International Administrative Review 199 Chapter 7: International Law Enforcement 244 Chapter 8: International Constitutional Review 282 PART III: Courts, Politics, Rights 333 Chapter 9: International Courts and Democratic Politics 335 Chapter Appendixes 367 Legal Cases Index and Citations 401 Court Treaty Bibliography and Litigation Data Sources 407 Bibliography of Cited Works 415 Index 441

Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

Abstract: This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations. * Professor of Law, University of Michigan. Thanks to Don Herzog, Ellen Katz, Richard Primus, and participants in Michigan Law’s Faculty Scholarship Brownbag Lunch for their comments, and to Grady Bridges, Matthew Lanahan, and Jarred Klorfein for research assistance. 2 Law & Economics Working Papers, Art. 90 [2013] http://repository.law.umich.edu/law_econ_current/90 66 STANFORD LAW REVIEW __ (FORTHCOMING 2014) ii INTRODUCTION 1 I. Actuarial Risk Prediction and the Movement Toward Evidence-Based Sentencing ......... 5 II. The Disparate Treatment Concern 12 A. Gender Classifications and the Problem with Statistical Discrimination 13 B. Wealth-Related Classifications in the Criminal Justice System 17 C. The Social Harm of Demographic and Socioeconomic Sentencing Discrimination 22 III. Assessing the Evidence for Evidence-Based Sentencing 25 A. Precision, Group Averages, and Individual Predictions 26 B. Do the Instruments Outperform Clinical Prediction and Other Alternatives? 32 C. Do the Risk Prediction Instruments Address the Right Question? 36 IV. Will Risk Prediction Instruments Really Change Sentencing Practice? 41 A. Does EBS Merely Provide Information? 41 B. Does EBS Merely Replace One Form of Risk Prediction With Another? 43 CONCLUSION 47

The EU Charter of Fundamental Rights: A Commentary

Abstract: The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU citizens and residents in EU law. In its present form it was approved in 2000 by the European Parliament, the Council of Ministers and the European Commission. However its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009. The Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU's courts to strike down EU legislation which contravenes it. The Charter applies to EU Member States when they are implementing EU law but does not extend the competences of the EU beyond the competences given to it in the treaties. This Commentary on the Charter, the first in English, written by experts from several EU Member States, provides an authoritative but succinct statement of how the Charter impacts upon EU, domestic and international law. Following the conventional article-by-article approach, each commentator offers an expert view of how each article is either already being interpreted in the courts, or is likely to be interpreted. Each commentary is referenced to the case law and is augmented with extensive references to further reading. Six cross-cutting introductory chapters explain the Charter's institutional anchorage, its relationship to the Fundamental Rights Agency, its interaction with other parts of international human rights law, the enforcement mechanisms, extraterritorial scope, and the all-important 'Explanations'.

Universality or Diversity of Human Rights? † Strasbourg in the Age of Subsidiarity

Abstract: Over the past few years, the European Court of Human Rights has been criticised in several extrajudicial speeches in the United Kingdom. In this article the author, a judge of the Strasbourg Court, analyses some of this criticism, focussing especially on Lord Hoffmann’s views in his 2009 farewell lecture, The Universality of Human Rights ,a s well as discussing some more recent speeches by senior British judges. The author argues that, contrary to some of this criticism, the Strasbourg Court has gradually developed its approach in relation to the principle of subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights. In this way, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities of their Convention obligations. In this connection, the article then discusses briefly the case law of the Strasbourg Court on the exhaustion of domestic remedies in relation to declarations of incompatibility under the Human Rights Act 1998 (UK).

Database of State Tort Law Reforms (5th)

Abstract: This manuscript of the DSTLR (5th) updates the DSTLR (4th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2012. The DSTLR has been downloaded almost 2000 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (5th) is provided. It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives.

The Principle of Loyalty in EU Law

Abstract: The book offers the first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law. Despite its seemingly innocuous wording, in what is now Article 4 (3) TEU, the principle of sincere cooperation has had a significant impact in deepening the reach of EU law within the Member States. The principle has been central to the development of Union law since the 1960s, and is still being relied on by the European Court of Justice to often-controversial effect. Providing a thorough discussion of the principle of loyalty in EU law, this book introduces a novel classification of the very diverse roles loyalty plays in the EU. It distinguishes between the effects loyalty prescribes for interlocking the legal orders of the Member States with Union law (cohesion), its application in preventing and resolving conflicts between the Union and the Member States (cooperation), and the loyalty principle's role in the shaping of EU law (construction). It addresses important and yet unresolved questions pertaining to loyalty, such as its relation to the principles of solidarity, effectiveness, fidelity, pre-emption, the Union interest, institutional balance, and the unity of international representation. The book explains why the principle of loyalty has been neglected in the prevailing narratives about the constitutionalization of EU law, places it in its international context, examining how it has influenced EU law and the comparisons that can be drawn with national and international principles of law.

The law's majestic equality ? the distributive impact of litigating social and economic rights

Abstract: Optimism about the use of laws, constitutions, and rights to achieve social change has never been higher among practitioners. But the academic literature is skeptical that courts can direct resources toward the poor. This paper develops a nuanced account in which not all courts are the same. Countries and policy areas characterized by judicial decisions with broader applicability tend to avoid the potential anti-poor bias of courts, whereas areas dominated by individual litigation and individualized effects are less likely to have pro-poor outcomes. Using data on social and economic rights cases in five countries, the authors estimate the potential distributive impact of litigation by examining whether the poor are over or under-represented among the beneficiaries of litigation, relative to their share of the population. They find that the impact of courts varies considerably across the cases, but is positive and pro-poor in two of the five countries (India and South Africa), distribution-neutral in two others (Indonesia and Brazil), and sharply anti-poor in Nigeria. Overall, the results of litigation are much more positive for the poor than conventional wisdom would suggest.

The Politics of Precedent in International Law: A Social Network Application—ERRATUM

Abstract: The concept of precedent is fundamental to domestic courts, especially in Anglo-American common law systems, where judges are bound to the court’s past decisions. By contrast, precedent has no formal authority in international law. Legal scholars point to Article 59 of the International Court of Justice (ICJ) Statute in this respect, according to which international legal rulings are binding only on the parties in the dispute at hand, and have no bearing on matters outside of the case.

Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age

Abstract: The 2013 revelations by Edward Snowden of the scope and magnitude of electronic surveillance programs run by the US National Security Agency (NSA) and some of its partners, chief among them the UK Government Communications Headquarters (GCHQ), have provoked intense and ongoing public debate regarding the proper limits of such intelligence activities. Privacy activists decry such programs, especially those involving the mass collection of the data or communications of ordinary individuals across the globe, arguing that they create an inhibiting surveillance climate that diminishes basic freedoms, while government officials justify them as being necessary for the prevention of terrorism. The purpose of this article, however, is not to assess the general propriety or usefulness of surveillance programs or their compliance with relevant domestic law. I do not want to argue that electronic surveillance programs, whether targeted or done on a mass scale, are per se illegal, ineffective or unjustifiable. Rather, what I want to look at is how the legality of such programs would be debated and assessed within the framework of international human rights law, and specifically under the major human rights treaties to which the ‘Five Eyes’ and other states with sophisticated technological capabilities are parties.In the wake of the UN General Assembly's 2013 resolution on the right to privacy in the digital age, it can be expected that electronic surveillance and related activities will remain on the agenda of UN bodies for years to come, especially since the political relevance of the topic shows no signs of abating. Similarly, cases challenging surveillance on human rights grounds are already pending before domestic and international courts. The discussion has just started, and it will continue at least partly in human rights terms, focusing on the rights and interests of the affected individuals, rather than solely on the interests and sovereignty of states. The primary purpose of this article is to advance this conversation by looking at one specific, threshold issue: whether human rights treaties such as the ICCPR and the ECHR even apply to foreign surveillance. The article will show that while there is much uncertainty in how the existing case law on the jurisdictional threshold issues might apply to foreign surveillance, this uncertainty should not be overestimated – even if it can and is being exploited. The only truly coherent approach to the threshold question of applicability, I will argue, is that human rights treaties should apply to virtually all foreign surveillance activities. That the treaties apply to such activities, however, does not mean that they are necessarily unlawful. Rather, the lawfulness of a given foreign surveillance program is subject to a fact-specific examination on the merits of its compliance with the right to privacy, and in that, I submit, foreign surveillance activities are no different from purely domestic ones.

Welfare migration? Free movement of EU citizens and access to social benefits

Abstract: This article analyzes the political impact of the European Court of Justice’s (ECJ) case law concerning the free movement of EU citizens and their cross-border access to social benefits. Public debates about ‘welfare migration’ or ‘social tourism’ often fluctuate between populist hysteria and outright denial, but they obscure the real political and legal issues at stake: that ECJ jurisprudence incrementally broadens EU citizens’ opportunities to claim social benefits abroad while narrowing member states’ scope to regulate and restrict access to national welfare systems. We argue that legal uncertainty challenges national administrations in terms of workload and rule-of-law standards, while domestic legislative reforms increasingly shift the burden of legal uncertainty to EU migrants by raising evidentiary requirements and threatening economically inactive EU citizens with expulsion. We illustrate this argument first with a brief overview of the EU’s legal framework, highlighting the ambiguity of core concepts from the Court’s case law, and then with empirical evidence from the UK, Germany and Austria, analyzing similar domestic responses to the ECJ’s jurisprudence. We conclude that EU citizenship law, while promising to build the union from below on the basis of equal legal entitlements, may, in fact, risk rousing further nationalism and decrease solidarity across the union.

Foreign Investment Disputes: Cases, Materials and Commentary

Abstract: This indispensable handbook is the first legal resource to gather together the most important cases and commentary on the increasingly significant subject of foreign investment disputes It fills the need for a compilation of the basic source material into a well-organised and up-to-date volume covering the full scope of the subject The work provides broad coverage of all aspects of foreign investment disputes: the treaty system protecting investments, investment contracts and key clauses, forums for resolving investment disputes, political risk insurance, applicable law, principles of state responsibility, investor rights under investment treaties and customary international law, defenses to investor claims, reparations, procedure and proof, and enforcement of arbitral awards Of particular value to practitioners are such features as the following: the most relevant excerpts from the most important cases dealing with foreign investment disputes; questions and comments prepared by the authors, who are senior lawyers and professors with vast experience and expertise in the subject matter; excerpts from decisions of the Overseas Private Investment Corporation interpreting the key terms of political risk insurance policies, and, key clauses in investment contracts "Foreign Investment Dispute: Cases, Materials and Commentary" will be of inestimable value to practitioners in the field, both experienced and novice, as well as to academics As a well-organised and easy-to-use compilation of the key materials from both case law and secondary sources, it has no peers

Protecting policy space for public health nutrition in an era of international investment agreements.

Abstract: Philip Morris has recently brought claims against Australia (2011) and Uruguay (2010) under international investment agreements (IIAs). The claims allege that Philip Morris is entitled to compensation following the introduction of innovative tobacco packaging regulations to reduce smoking and prevent noncommunicable diseases (NCDs). Since tobacco control measures are often viewed as a model for public health nutrition measures, the claims raise the question of how investment law governs the latter. This paper begins to answer this question and to explain how governments can proactively protect policy space for public health nutrition in an era of expanding IIAs. The authors first consider the main interventions proposed to reduce diet-related NCDs and their intersection with investment in the food supply chain. They then review the nature of investment regimes and relevant case law and examine ways to maximize policy space for public health nutrition intervention within this legal context. As foreign investment increases across the food-chain and more global recommendations discouraging the consumption of unhealthful products are issued, investment law will increase in importance as part of the legal architecture governing the food supply. The implications of investment law for public health nutrition measures depend on various factors: the measures themselves, the terms of the applicable agreements, the conditions surrounding the foreign investment and the policies governing agricultural support. This analysis suggests that governments should adopt proactive measures – e.g. the clarification of terms and reliance on exceptions – to manage investment and protect their regulatory autonomy with respect to public health nutrition.

National Responses to European Court Jurisprudence

Abstract: The power of the European Court of Justice (ECJ) to promote European integration through law has been broadly acknowledged, but the court’s domestic impact has received less attention and remains contested. In particular, the ambiguity of many ECJ judgments is said to have two opposed effects: According to one logic, legal ambiguity enables national policy-makers to contain the impact of court rulings, i.e. to ignore potentially broader policy implications. According to another logic, ambiguous case law provides opportunities for interested litigants to pressure national policy-makers into (anticipatory) adjustments. Which of these two logics prevails, it is argued, depends on the distribution of legal uncertainty costs between supporters and challengers of the regulatory status quo. The argument is supported by two in-depth case studies on the domestic responses to series of ECJ rulings concerning the free movement of capital (golden shares) and services (posted workers).

The Inter-American Court of Human Rights: Case-Law and Commentary (Simon Hentrei / Ximena Soley)

Abstract: Foreword Introduction Table of Cases List of Abbreviations PART I: PROCEDURAL GUARANTEES 1. The optional contentious jurisdiction of the Court 2. The indirect contentious jurisdiction of the Court 3. The jurisdiction ratione materiae of the Court 4. Advisory jurisdiction 5. Determination of victims 6. Exhaustion of domestic remedies 7. The powers of the Court to interpret and revise its judgments 8. The powers of the Court to monitor compliance with its judgments 9. The right to order provisional measures 10. The right to determine reparations 11. The right to iad intra enforcement of the Convention PART II: SUBSTANTIVE GUARANTEES 12. The right to life and the death penalty 13. Forced disappearance 14. Extrajudicial executions 15. Right to personal integrity 16. The rights of the child 17. Women's rights 18. Workers' rights 19. The rights of detainees 20. The rights of indigenous peoples 21. The right to the freedom of thought and expression 22. The right to nationality 23. Political rights 24. Economic and social rights 25. The right to due process 26. The right to an effective remedy 27. The right to the truth APPENDICES SOURCES AND TABLES BIBLIOGRAPHY INDEX

Earned Citizenship: Understanding Union Citizenship Through its Scope

Abstract: In this contribution I will argue that we are witnessing a reactionary phase in the Court’s interpretation of the citizenship provisions which not only reaffirms the migration paradigm, but also contracts the scope of application of Article 20(1) TFEU, as well as imposing additional criteria for the enjoyment of citizenship rights to those provided for in Directive 2004/38. In turn, this development in the case law has important repercussions on the way we think about Union citizenship – in particular, the dichotomy status/beneficiary, together with the additional requirements imposed by the Court and the reallocation of responsibility of vulnerable citizens across national boundaries, not only reduce the relevance of Union citizenship, but transform it from a fundamental status to a mere additional one, so that the significance of Union citizenship is much reduced. Whilst this turn in the case law can be defended from a hermeneutic perspective, it has important consequences. First, it restates the primacy of the market citizen; secondly, and more importantly, Union citizenship far from being a uniting concept becomes a vehicle for further discrimination. In this writer’s perspective it becomes near impossible to defend the concept of Union citizenship so interpreted: no citizenship at all is preferable to such an unequal citizenship.

The Court and Sleeping Beauty: The revival of the Unfair Contract Terms Directive (UCTD)

Abstract: The paper gives an overview of the increased litigation leading to innovative case law of the ECJ concerning the scope and effects of the Unfair Contract Terms Directive (Directive 93/13/EEC) on consumer contracts, in particular financial services and services in the general economic interest. The originally limited impact of the Directive on Member State contract law and procedure has been substantially extended - as a metaphor, one may even say that a "Sleeping Beauty has been kissed awake" by the Court! The authors follow the recent case law both in its legal and economic consequences on consumer protection in the EU internal market. The paper ends with an outlook on the state of "Social Contract Law in the EU" - hoping to provoke a broader discussion on the concept and limits of a "Europeanization" of contract law already under way.

Habeas and the Roberts Court

Abstract: Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny. The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task. Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

The moral maze of image ethics

Abstract: This chapter explores the legal dimensions of children's involvement in research, explaining current position relating to the rights of children, parents and their carers. It focuses on the law in England and Wales; the position in Northern Ireland and in Scotland is similar. The relevant law is to be found in cases, and in key statutes, the Children Act 1989 for England and Wales, the Children Order 1995 which is in most respects identical to the law in England and Wales, the Children Act 1995 and the Age of Legal Capacity Act 1991. Those researching in other Common Law countries, for example, the USA, Canada, Australia, New Zealand, also finds that similar concepts have taken root; elsewhere differences are likely to be greater. All research participants, including children and young people, need careful explanations of research confidentiality when their consent to participate is sought. Although these children keep secrets from their parents, they are not entitled to confidential relationships automatically.

Law and Finance Revisited: Evidence from African Countries

Abstract: The law and finance theory essentially states that legal origins are a significant determinant of financial development. The conclusion from the law and finance theory is that countries whose legal traditions derived from British Common Law have better developed financial markets than countries following French Civil Law. This study conducted an empirical investigation of the law and finance theory for African countries. Our empirical results showed that legal origins are insignificant in explaining financial development but rather, legal effectiveness significantly explains cross-country differences in financial development in Africa. We concluded that the law and finance theory does not hold in African countries.

Is structured reporting the answer

Abstract: Just because something is new does not necessarily mean it is better, and in some cases, ways of thinking and working that have evolved gradually over many years—whether in radiologic reporting or the European common law tradition—reflect an accumulated wisdom that should not be dismissed blithely in the name of novelty.

Shades of Grey - Domestic and Sexual Violence Against Women: Law Reform and Society

Abstract: Arguing that law must be looked at holistically, this book investigates the ‘hidden gender’ of the so-called neutral or objective legal principles that structure the law addressing violence against women Adopting an explicitly feminist perspective, it investigates how legal responses to violence against women presuppose, maintain and perpetuate a certain context that may not in fact reflect women’s experiences Carline and Easteal draw upon relevant legislation, case law and secondary studies from a range of territories, including Australia, England and Wales, the United States, Canada and Europe, to contextualize and critique different policy responses They go on to examine the potential and limits of law, making recommendations for best practice models of policymaking and law reform Aiming to help improve government, community and legal responses to women who experience violence, Shades of Grey – Domestic and Sexual Violence Against Women: Law Reform and Society will assist law-makers, academics, policymakers and a wider audience in understanding the complexities of violence against women

Towards an Economics of Convention-based Approach of the European Competition Policy

Abstract: Our paper aims at developing an analysis of the European competition law enforcement dynamics based on an economics of conventions' framework. We question the ordoliberal theoretical foundations of the EU competition policy and we assess to what extent the implementation of a "more economic approach" might pertain to a convention inspired by the Chicago School normative views. We question the economic history, the history of economics thought, and the legal history as we consider that the European courts case law is the main driving force of conventional shifts in matter of competition law enforcement.

Bureaucracy and law: a study of Chinese criminal courts and social media.

Abstract: OF DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Criminology and Justice Policy in the College of Social Sciences and Humanities of Northeastern University August, 2014

The Unbearable Lightness of Rights: On Sociolegal Inquiry in the Global Era

Abstract: It has been an enormous honor for me to serve as the president of the Law and Society Association (LSA). Nevertheless, like many of my predecessors, I approached the challenge of choosing a topic for the ritual lunchtime address with a bit of trepidation. It seems that no matter what a president does over the two-year term, what most sociolegal colleagues remember is "the speech." I heard that over and over, as people queried me about my topic and the type of talk I planned. So let me say at the start that it is not my inclination in this context, as many colleagues are finishing their desserts and coffee, to tell all of you that we in the Association need to be doing something new or different. I have already done lots of pushing and pulling in new directions over the last several years in other forums. Instead, I offer some reflections on a prominent intellectual tradition of our scholarship, one that has shaped and expressed the changing character of our Association over the last 50 years, and one that is inseparable from our modes of public engagement. The theme of my remarks today is our intellectual engagement as sociolegal scholars with the theme of rights.Perhaps no topic, short of law itself, has been more central to the sociolegal legacy of scholarly inquiry than that of rights.Itis worth remembering that Law and Society as an intellectual move- ment and professional association was born in the era of the U.S. civil rights movement.1 The first volume of the Law & Society Review was published in 1966, when the ink was still drying on the 1964 Civil Rights Act and 1965 Voting Rights Act. In fact, the first special issue of LSR in 1967 (Vol. 2, no. 1) was on school desegregation in the United States.The prevailing mode of inquiry in the early decades was gap studies that demonstrated how promises of rights often fall short in implementation as policy or practice (Gould & Barclay 2012). Empirical analysis often aimed to offer reforms that might close the gap and make law live up to its promises of rights recognition. Then, in the late 1970s, several waves of critical theory-first critical legal studies (Kairys 1998), then critical feminist theory, critical race theory (Crenshaw et al. 1995; Delgado & Stefancic 2001) LatCrit theory (Haney Lopez 1996), and queer theory (Bower 1994; Stychin 1998)-began to interrogate the promises of rights in more analyti- cally ambitious ways that questioned the emancipatory potential of rights and demonstrated the ways that rights conventions often support hierarchy, divert political struggles, and impede as well as advance social justice. Much of this scholarship focused on official case law, but it was soon joined by empirically grounded study and debate focusing on the degree to which legal and political mobiliza- tion by rights claiming groups or movements advanced egalitarian social justice or positive social change (Handler 1978; Scheingold 1974). This interest in group-based contestation over rights was paralleled by an explosion of empirical scholarship studying indi- vidual disputing over rights and everyday legal consciousness, which included ample attention to rights consciousness. These currents of scholarship regarding both individual disputing and group politics around rights varied widely in epistemology and method, from positive quantitative (Miller & Sarat 1980-81) to qualitative inquiry, including interpretive ethnographic and interview-based study (Ewick & Silbey 1998; Fleury-Steiner & Nielsen 2006; Merry 1990; Sarat 1990). And most of this scholarship in LSA was undertaken by scholars at U.S. institutions who focused on rights in the North American tradition or context.The lessons of this rich scholarly tradition are many and cannot be fully covered here, but I will summarize a few highlights of what I have learned. I will save for the end my original title, which I abandoned. Instead, I have chosen to title this reflection "The Unbearable Lightness of Rights. …

Habeas and the Roberts Court

Abstract: Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny. The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task. Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

Goodbye van Gend en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Individual CJEU Judgments

Abstract: It is generally agreed that some judgments by the Court of Justice are more important than others, but the ability of traditional legal methods to identify such judgments is inherently limited. In this article, we apply various tools developed in network analysis to identify which judgments are the most important as legal precedents. The study reveals that certain well-known judgments, like van Gend en Loos, have limited importance as precedents, while other judgments, like Bosman, PreussenElektra and Schumacker, are likely overlooked.