Recent Publications

From Clapham to Salina: Locating the Reasonable Man

simonstern — Sat, 11 Mar 2023 17:48:03 +0000

Simon Stern, "From Clapham to Salina: Locating the Reasonable Man" Law and Literature (advance access) 2023

Abstract:

鈥淭he man on the Clapham omnibus鈥?is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as 鈥渢he man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.鈥?Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (鈥渢he reasonable person鈥? tends to introduce problems that do not arise with a more abstract one (鈥渞easonableness,鈥?鈥渞easonable care鈥?. Many critics have shown that the 鈥渞easonableness鈥?standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

https://www.tandfonline.com/doi/full/10.1080/1535685X.2022.2157101

Omniscient Narrative Modes in Law

simonstern — Sat, 11 Mar 2023 17:43:13 +0000

Simon Stern, "Omniscient Narrative Modes in Law: From Trial Strategy to the Fellow-Servant Rule," Law, Culture and the Humanities (advance access) 2023

Abstract:

Research in law and literature often uses the term 鈥渘arrative鈥?as a shorthand for various kinds of motivated legal reasoning, indicating that facts, doctrines, and the relations among them have been chosen and arranged for a particular purpose. Alternatively, speaking of 鈥渘arrative鈥?may be a way of conveying that one is concerned with interpretation, and may be a signal that the discussion will focus on images, symbols, representations, or ideologies, even if their narrative features play little or no role in the analysis. This article shows how research on narrative might help to clarify aspects of trial strategy and legal doctrine. The first section considers omniscient narration as a way of understanding the effects of various defense strategies, in a criminal trial. The second section considers the role of omniscient narration in the development of the 鈥渇ellow- servant鈥?rule in the nineteenth century. The law of evidence provides an especially fruitful area for such investigations, but questions of narrative form and technique can help to clarify many other aspects of forensic argumentation and analysis, in both procedural and substantive contexts.

https://journals.sagepub.com/doi/10.1177/17438721231154449

Solidarity in Place? Hope and Despair in Postpandemic Citizenship

ashachar — Fri, 30 Dec 2022 03:19:49 +0000

Ethics & International Affairs 36 (2022), 487-504

Abstract:

Initially portrayed as the 鈥済reat equalizer,鈥?the COVID-19 pandemic has proved anything but. This essay recounts the sobering social disparities and vulnerabilities that the pandemic has exposed, especially when it comes to the inequalities that are baked into existing membership regimes, before turning to narratives of hope and democratic renewal. My discussion shines a spotlight on the relationship between borders, (im)mobility, and struggles for recognition and inclusion that have long been central to the practice of citizenship. Focusing on pathways to the acquisition of full membership status for those who are currently denied it, I will deploy logics and policies that have already begun to take shape in different parts of the world, with the goal of amplifying their effects and multiplying their scale. I identify three possible trajectories for postpandemic recovery, two of which offer ways to enhance equality of status and public standing by enlarging the circle of membership: first, through contribution (or what I will term 鈥?lt;/span>jus contribuere鈥?, and second, by highlighting what we might call 鈥渟olidarity in place.鈥?The third reaction, which we might call the 鈥渟tratification of membership,鈥?pulls in the opposite direction by sharply redrawing the lines鈥攍egal, economic, social鈥攖hat have distinguished insiders from outsiders, and exacerbated patterns of stratification and inequality of status and opportunity that predate the pandemic.

https://www.cambridge.org/core/journals/ethics-and-international-affairs/article鈥?lt;/a>

Canadian Policing: Why and How it Must Change

kroach — Fri, 30 Sep 2022 16:07:59 +0000

Kent Roach Canadian Policing Why and How it Must Change (Toronto: Irwin Law, Delve Books, 2022) (267 pp.) (short-listed for Balsillie Prize in Public Policy)

Abstract:

Canadian Policing: Why and How It Must Change is a comprehensive and critical examination of Canadian policing from its colonial origins to its response to the February 2022 blockades and occupations. Police shootings in June 2020 should dispel any complacency that Canada does not face similar policing problems as the United States, and a vicious circle of overpolicing and underprotection plagues many intersecting disadvantaged groups. Multiple accountability measures 鈥?criminal investigations, Charter litigation, complaints, and discipline 鈥?have not improved Canadian policing. What is required is more active and proactive governance by the boards, councils, and ministers that are responsible for Canada鈥檚 police. Governance should respect law enforcement independence and discretion while rejecting overbroad claims of police operational independence and self-governance.

Even before pandemic-related deficits, the costs of the public police were not sustainable 鈥?these budgets require fundamental change without expansion. Such change should include greater service delivery by more expert and cost-effective health, social service, and community agencies. Indigenous police services 鈥?unfortunately, Canada鈥檚 only chronically and unconstitutionally underfunded police services 鈥?can also play a positive role. To that end, Canadian Policing: Why and How It Must Change offers concrete proposals for reforms to the RCMP, use of force policies, better community safety plans, and more democratic policing.

鈥淚 was born on a First Nation Reserve at a time when over-policing was palpable and directed at enforcing our lives as authorized by government policies like the pass system and legislation like the Indian Act. I served Canada for eleven years as a trial judge and fourteen years as the first ever Indigenous judge to serve on an appellate court in Canada. I believed this lived experience made me as knowledgeable as anyone about Canadian policing. Turns out, I was wrong. This book by Professor Kent Roach has reminded me of what I have said many times: anything written by him is a chance to learn something vital about our system of justice. This book is a shock to the system and a lesson about what makes a healthier society. Professor Roach lives up to his global reputation as a criminal law expert; reminds us about dark pieces of our history; and does so in clear and compelling prose, concluding with how we can be a better nation and a more just society.鈥?lt;br />The Honourable Harry LaForme

鈥淜ent Roach鈥檚 book, Canadian Policing: Why and How It Must Change, is the most thorough and best-researched account of the problematic aspects of policing in contemporary Canada. It is an indispensable guide to citizens and scholars on the costs and effectiveness of policing, as well as police structures and the accountability of police to elected governments.鈥?lt;br />Peter Russell O.C.
Professor of Political Science Emeritus
University of Toronto

https://irwinlaw.com/product/canadian-policing-why-and-how-it-should-change/

Policing and Public Office

mthorburn — Mon, 10 May 2021 20:56:52 +0000

Thorburn, Malcolm, "Policing and Public Office" 70 University of Toronto Law Journal 248-266 (2020).

Abstract:

In this paper, I argue that policing can be defended as consistent with the equality of all before the law 鈥?but not by denying that policing occupies a special place in our legal order that is dangerously close to certain ancien r茅gime privileges. In order to defend the special privileges of policing, it is essential to show that they are something quite different from the ancien r茅gime privileges that they in some respects resemble. The crucial conceptual tool for making that argument is the idea of public office. Policing, I argue, is a public office and like other public offices, it comes equipped with a number of special rights, privileges, powers, and immunities that are not generally possessed by all persons in their private capacity. But that situation is no challenge to the equality of all persons before the law. Those special rights do not belong to the office-holder as their private property, to do with them just as they would like. They belong, instead, to the office itself, and they may be exercised only by someone duly appointed to the office (who may also be duly removed from office) and only in pursuit of the purposes that define her office. The idea of public office is what makes possible a necessary and acceptable kind of inequality 鈥?that between individual private persons on the one hand and the collective person of the state on the other 鈥?while maintaining the kind of equality that matters, which is the equality of all persons vis-脿-vis one another.

https://muse-jhu-edu.myaccess.library.utoronto.ca/article/774888/pdf

Proximate Causation in Legal Historiography

simonstern — Mon, 10 May 2021 15:59:45 +0000

Simon Stern, "Proximate Causation in Legal Historiography," History & Theory 60:2 (2021): 453-65

Abstract:

The kind of legal history published in general-interest law journals tends to differ from the kind published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes.

To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely.

To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.

https://onlinelibrary.wiley.com/doi/10.1111/hith.12212

Biographical Evidence and the Law of Presumptions

simonstern — Fri, 07 May 2021 14:47:30 +0000

Simon Stern, "Biographical Evidence and the Law of Presumptions,' J19: The Journal of Nineteenth-Century Americanists 9:1 (2021) 83 https://muse.jhu.edu/article/790342

Abstract:

The rules and history of evidence law can provide useful resources for understanding the role of biographical evidence in literary criticism. During the nineteenth century, as evidence law became increasingly formalized, presumptions acquired a newfound significance as a device for allocating the burden of proof in evidentiary disputes. Presumptions generally operate by stipulating a legal conclusion that flows from a certain factual premise, such that the conclusion remains dispositive unless the opposing party offers witnesses or documents that contradict it. The result is a burden-shifting procedure that licenses a generic inference, assumed to flow from a factual premise but capable of being rebutted by specific details to the contrary. Literary critics often use biographical evidence in a similar fashion: in the absence of concrete information about a writer's beliefs or experiences, critics use some kinds of generic biographical information to draw inferences about the attitudes that someone with a certain background would have held. When more specific biographical details become available, they are used to confirm, refine, or contradict those inferences. Unlike lawyers, however, literary critics tend to use biographical information of all kinds鈥攂oth generic and specific鈥攖o raise new inferences rather than to resolve questions definitively.

https://muse.jhu.edu/article/790342

The Challenges of Islamic Law Adjudication in Public Reason

aagulto — Wed, 11 Nov 2020 16:41:09 +0000

Fadel, M. (2020). The Challenges of Islamic Law Adjudication in Public Reason. In S. Langvatn, M. Kumm, & W. Sadurski (Eds.), Public Reason and Courts (Studies on International Courts and Tribunals, pp. 115-142). Cambridge: Cambridge University Press. doi:10.1017/9781108766579.006

Abstract:

John Rawls鈥檚 conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, which seems to exclude adoption of Islamic legal doctrines as legitimate rules of decision. While that is true as a matter of ideal theory, the relationship of public reason to Islamic law in non-ideal theory is more complex. Islamic law is directly incorporated in the legal systems of numerous Muslim and non-Muslim jurisdictions throughout the world, or its rules arise incidentally in various cases where Islamic law is not formally part of the legal order. This chapter argues that the idea of public reason can meaningfully guide public reason鈥搈inded judges when they are tasked with applying Islamic law in a fashion that vindicates the ideals of public reason. Public reason requires judges to steer a middle course among possible extremes when an issue of Islamic law arises: theological reasoning, extreme deference to historical norms, or principled abstention. Moreover, by adhering to the idea of public reason in these cases, judges can play in important role in strengthening, or bringing about, an overlapping consensus in their respective societies.

https://www.cambridge.org/core/books/public-reason-and-courts/challenges-of-isla鈥?lt;/a>

The Oxford Handbook of Ethics of AI

mdubber — Wed, 24 Jun 2020 10:57:43 +0000

Markus D. Dubber, Frank Pasquale & Sunit Das, eds., The Oxford Handbook of Ethics of AI (Oxford University Press 2020).

Abstract:

This volume tackles a quickly-evolving field of inquiry, mapping the existing discourse as part of a general attempt to place current developments in historical context; at the same time, breaking new ground in taking on novel subjects and pursuing fresh approaches.

The term "A.I." is used to refer to a broad range of phenomena, from machine learning and data mining to artificial general intelligence. The recent advent of more sophisticated AI systems, which function with partial or full autonomy and are capable of tasks which require learning and 'intelligence', presents difficult ethical questions, and has drawn concerns from many quarters about individual and societal welfare, democratic decision-making, moral agency, and the prevention of harm. This work ranges from explorations of normative constraints on specific applications of machine learning algorithms today-in everyday medical practice, for instance-to reflections on the (potential) status of AI as a form of consciousness with attendant rights and duties and, more generally still, on the conceptual terms and frameworks necessarily to understand tasks requiring intelligence, whether "human" or "A.I."

https://global.oup.com/academic/product/the-oxford-handbook-of-ethics-of-ai-9780鈥?lt;/a>

The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

mdubber — Wed, 24 Jun 2020 10:55:41 +0000

Markus D. Dubber, The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective (Oxford University Press 2018)

Abstract:

The Dual Penal State addresses one of today's most pressing social and political issues: the rampant, at best haphazard, and ever-expanding use of penal power by states ostensibly committed to the enlightenment-based legal-political project of Western liberal democracy. Penal regimes in these states operate in a wide field of ill-considered and barely constrained violence where radical and prolonged interference with citizens, upon whose autonomy the legitimacy of state power supposedly rests, has been utterly normalized. At its heart, the crisis of modern penality is a crisis of the liberal project itself and the penal paradox is the sharpest formulation of the general paradox of power in a liberal state: the legitimacy of state sovereignty in the name of personal autonomy.

To capture the depth and range of the crisis of contemporary penality in ostensibly liberal states the book adopts a fresh approach. It uses historical and comparative analysis to reveal the fundamental distinction between two conceptions of penal power - penal law and penal police - that runs through Western legal-political history: one rooted in autonomy, equality, and interpersonal respect, and the other in heteronomy, hierarchy, and patriarchal power. This dual penal state analysis illuminates how the law/police distinction manifests itself in various penal systems, from the American war on crime to the ahistorical methods of German criminal law science.

https://global.oup.com/academic/product/the-dual-penal-state-9780198744290

The Oxford Handbook of European Legal History

mdubber — Wed, 24 Jun 2020 10:52:30 +0000

Heikki Pihlajam盲ki, Markus D. Dubber & Mark Godfrey, eds., The Oxford Handbook of European Legal History (Oxford University Press 2018) (Chinese translation in preparation: Shanghai People鈥檚 Publishing House).

Abstract:

European law, including both civil law and common law, has gone through several major phases of expansion in the world. European legal history thus also is a history of legal transplants and cultural borrowings, which national legal histories as products of nineteenth-century historicism until have recently largely left unconsidered. The Handbook of European Legal History supplies its readers with an overview of the different phases of European legal history in the light of today's state-of-the-art research, by offering cutting-edge views on research questions currently emerging in international discussions.

The Handbook takes a broad approach to its subject matter both nationally and systemically. Unlike traditional European legal histories, which tend to concentrate on "heartlands" of Europe (notably Italy and Germany), the Europe of the Handbook is more versatile and nuanced, taking into consideration the legal developments in Europe's geographical "fringes", such as Scandinavia and Eastern Europe. The Handbook covers all major time periods, from the ancient Greek law to the twenty-first century. Contributors include acknowledged leaders in the field as well as rising talents, representing a wide range of legal systems, methodologies, areas of expertise and research agendas.

https://global.oup.com/academic/product/the-oxford-handbook-of-european-legal-hi鈥?lt;/a>

Absolute Authority

vanessa.zhang — Mon, 25 May 2020 15:51:23 +0000

Alan Brudner, Absolute Authority, Oxford Journal of Legal Studies, gqaa009, https://doi.org/10.1093/ojls/gqaa009

Abstract:

In this article, I set side by side two conceptions of absolute authority. Behind both stands a neutral concept of absolute authority whose definition is common ground between them. An absolute authority is one whose commands its subjects have an obligation to obey independently of all conditions save those necessary to its being an authority. The conceptions of absolute authority I discuss describe a legal relation between a political authority and a political subject meant to satisfy that definition, but they do so in opposite ways. Roughly (for now), one conceives absolute authority as being empty of legal duty to the subject; the other conceives absolute authority as being replete with legal...

Moral Consensus, Rights, and Efficiency in the Economic Analysis of Law

chapmanb — Tue, 05 May 2020 17:57:39 +0000

Bruce Chapman, "Moral Consensus, Rights, and Efficiency in the Economic Analysis of Law" 40 (1) Oxford Journal of Legal Studies (2020) 1-27

Abstract:

The primary value that grounds the determination of rights within economic analysis of law is Kaldor鈥揌icks efficiency. This is a value that, while it claims a Paretian pedigree, can, if pursued systematically and without qualification, lead to an outcome where everyone in some society or some organisation is worse off than they might otherwise have been. Perhaps this should not be a surprise. After all, Amartya Sen showed many years ago that individual rights and the Pareto principle could conflict; this would appear to include Kaldor鈥揌icks efficient rights. What is more surprising is that to choose welfare over rights as the basis for supporting Kaldor鈥揌icks efficiency, as the economist is inclined to do, commits the economist to taking the same position on the legal enforcement of positive morality that Patrick Devlin developed more than half a century ago in his debate with HLA Hart.

https://academic.oup.com/ojls/article/40/1/1/5575928?guestAccessKey=aa91befe-f9d鈥?lt;/a>

Justice in Transactions: A Theory of Contract Law

vanessa.zhang — Tue, 05 May 2020 17:43:23 +0000

Peter Benson, Justice in Transactions: A Theory of Contract Law (Cambridge, MA. The Belknap Press of Harvard University Press, 2019)

Abstract:

鈥淥ne of the most important contributions to the field of contract theory鈥攊f not the most important鈥攊n the past twenty-five years.鈥濃€擲tephen A. Smith, McGill University

Can we account for contract law on a moral basis that is acceptable from the standpoint of liberal justice? To answer this question, Peter Benson develops a theory of contract that is completely independent of鈥攁nd arguably superior to鈥攍ong-dominant views, which take contract law to be justified on the basis of economics or promissory morality. Through a detailed analysis of contract principles and doctrines, Benson brings out the specific normative conception underpinning the whole of contract law. Contract, he argues, is best explained as a transfer of rights, which is complete at the moment of agreement and is governed by a definite conception of justice鈥攋ustice in transactions.

Benson鈥檚 analysis provides what John Rawls called a public basis of justification, which is as essential to the liberal legitimacy of contract as to any other form of coercive law. The argument of Justice in Transactions is expressly complementary to Rawls鈥檚, presenting an original justification designed specifically for transactions, as distinguished from the background institutions to which Rawls鈥檚 own theory applies. The result is a field-defining work offering a comprehensive theory of contract law. Benson shows that contract law is both justified in its own right and fully congruent with other domains鈥攎oral, economic, and political鈥攐f liberal society.

https://www.hup.harvard.edu/catalog.php?isbn=9780674237599

The Shifting Border: Legal Cartographies of Migration and Mobility

ashachar — Sat, 07 Mar 2020 21:23:45 +0000

Ayelet Shachar, The Shifting Border: Legal Cartographies of Migration and Mobility (Critical Powers Series, Manchester University Press, 2020)

Abstract:

The border is one of the most urgent issues of our times. We tend to think of a border as a static line, but recent bordering techniques have broken away from the map, as governments have developed legal tools to limit the rights of migrants before and after they enter a country's territory. The consequent detachment of state power from any fixed geographical marker has created a new paradigm: the shifting border, an adjustable legal construct untethered in space. This transformation upsets our assumptions about waning sovereignty, while also revealing the limits of the populist push toward border-fortification. At the same time, it presents a tremendous opportunity to rethink states' responsibilities to migrants. This book proposes a new, functional approach to human mobility and access to membership in a world where borders, like people, have the capacity to move.

https://manchesteruniversitypress.co.uk/9781526145314/

The Legal Imagination in Historical Perspective

simonstern — Fri, 21 Feb 2020 19:40:03 +0000

Simon Stern, "The Legal Imagination in Historical Perspective," in Amalia Amaya and Maksymilian Del Mar, eds., Virtue, Emotion, and Imagination in Law and Legal Reasoning (Hart, 2020), 217-34

Abstract:

After considering the different meanings that commentators have assigned to "the legal imagination," this chapter asks what is specifically legal about these imaginative uses: what distinctively imaginative traits do we find in law, by contrast with other intellectual domains? In the law, the imagination operates under constraint, whereas in many fields, imaginative activity is associated with free play. Exploring this idea with respect to the introduction of "the reasonable man" in 19th-century law, the chapter takes up an overlooked episode in the history of figure: its unsuccessful use in the law of negotiable instruments, in the 1820s and 30s. By asking what accounts for the move to adopt this figure and to reject it ten years later, and then to find it taken up shortly afterwards in the law of torts, I seek to demonstrate how lawyers' and judges' lateral-looking, analogy-seeking efforts exhibit the legal imagination, operating under constraint, and how the example of an unsuccessful effort can help to reveal the limits that govern this enterprise.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3273942

The Oxford Handbook of Law and Humanities

simonstern — Fri, 21 Feb 2020 19:23:49 +0000

Simon Stern, Maksymilian Del Mar, and Bernadette Meyler, eds., The Oxford Handbook of Law and Humanities (OUP, 2020) https://global.oup.com/academic/product/the-oxford-handbook-of-law-and-h...

Abstract:

How does materiality matter to legal scholarship? What can affect studies offer to legal scholars? What are the connections among visual studies, art history, and the knowledge and experience of law? What can the disciplines of book history, digital humanities, performance studies, disability studies, and post-colonial studies contribute to contemporary and historical understandings of law? These are only some of the important questions addressed in this wide-ranging collection of law and humanities scholarship.

Collecting 45 new essays by leading international scholars, The Oxford Handbook of Law and Humanities showcases the work of law and humanities across disciplines, addressing methods, concepts and themes, genres, and areas of the law. The essays explore under-researched domains such as comics, videos, police files, form contracts, and paratexts, and shed new light on traditional topics, such as free speech, intellectual property, international law, indigenous peoples, immigration, evidence, and human rights. The Handbook provides an exciting new agenda for scholarship in law and humanities, and will be essential reading for anyone interested in the intersections of law and humanistic inquiry.

https://global.oup.com/academic/product/the-oxford-handbook-of-law-and-humanitie鈥?lt;/a>

The disappointing remedy? Damages as a remedy for violations of human rights

vanessa.zhang — Tue, 03 Dec 2019 19:57:02 +0000

Kent Roach. "The disappointing remedy? Damages as a remedy for violations of human rights". (November 2019) 69 University of Toronto Law Journal, 33-63.

Abstract:

After initial optimism, damages have become a disappointing remedy for human rights violations in Canada, New Zealand, South Africa, the United Kingdom, and the United States. Part I of this article relates this disappointment to the modest nature of most awards and the continued impact of qualified and absolute immunities. Part II argues that the answer is not, as some have suggested, to return to tort principles but, rather, to look to public law principles, including international law principles of state responsibility. This allows damages to be placed in the perspective of the state鈥檚 obligations to comply with human rights and the availability of alternative and sometimes stronger remedies. A public law approach also allows principles of proportionality to discipline and structure the exercise of remedial discretion. Part III situates damages within a two-track approach to remedies in both domestic and supranational law. Under this approach, courts will play the dominant role in providing remedies including damages to recognize past violations but play a more dialogic role with respect to encouraging states to prevent similar violations in the future.

https://doi.org/10.3138/utlj.69.s1.002

Post-Abortion Care: Ethical and Legal Duties

vanessa.zhang — Fri, 08 Nov 2019 14:36:09 +0000

Dickens, Bernard, Post-Abortion Care: Ethical and Legal Duties (2019). International Journal of Gynecology and Obstetrics 2019; 147: 273鈥?78.

Abstract:

Women who experience complications from abortion, whether unlawful or lawful, induced or spontaneous, need immediate post-abortion care. Delay in providing care might cause women鈥檚 avoidable disability,lost childbearing capacity, or death. Rendering care is not an abortion procedure nor illegal, and does not justify conscientious objection. Harm reduction strategies to reduce effects of unsafe abortion may legitimately inform women who might consider resort to abortifacient interventions of their rights to professional post-abortion care. Healthcare practitioners鈥?refusal or failureto provide available care might constitute ethical misconduct and attract legal liability, for instance for negligence. States are responsible to ensure healthcare practitioners鈥?and facilities鈥?provision of post-abortion care, including both medical care and psychological support,delivered with compassion and respect for dignity, and to suppress stigmatization of patients and/or caregivers. Mandatory reporting of patients suspected of criminal abortion violates professional confidentiality. States鈥?failures of indicated care might constitute human rights violations.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3451266

You Get What You Pay For: An Empirical Examination of the Use of MTurk in Legal Scholarship

vanessa.zhang — Tue, 22 Oct 2019 20:06:22 +0000

Adriana Robertson and Albert Yoon. "You Get What You Pay For: An Empirical Examination of the Use of MTurk in Legal Scholarship". 72 Vanderbilt L. Rev. 1633 (2019).

Abstract:

In recent years, legal scholars have come to rely on Amazon鈥檚 Mechanical Turk (鈥淢Turk鈥? platform to recruit participants for surveys and experiments. Despite MTurk鈥檚 popularity, there is no generally accepted methodology for its use in legal scholarship, and many questions remain about the validity of data gathered from this source. In particular, little is known about how the compensation structure affects the performance of respondents recruited using MTurk.

This Essay fills both of these gaps. We develop an experiment and test the effect of various compensation structures on performance along two dimensions: effort and attention. We find that both the level and the structure of the compensation scheme have substantial effects on the performance of MTurk workers, and that these effects differ across question types. We then propose a series of best practices for scholars to follow in conducting research using MTurk. Adoption of these guidelines will improve both the transparency and the robustness of research conducted using this platform.

https://cdn.vanderbilt.edu/vu-wp0/wp-content/uploads/sites/278/2019/10/11144219/鈥?lt;/a>

Comparing legal styles

vanessa.zhang — Fri, 18 Oct 2019 12:58:36 +0000

Valcke, C. (2019). Comparing legal styles. International Journal of Law in Context, 15(3), 274-296. doi:10.1017/S1744552319000284

Abstract:

The question of legal 鈥榮tyle鈥?is a central one in comparative law, as mainstream comparative law tends to downplay its importance. The kinds of comparative law scholarship that have attracted most attention in the last decades 鈥?the 鈥榟armonisation projects鈥?and the 鈥榣egal origins鈥?literature (perhaps also the 鈥榣egal formant鈥?literature) 鈥?indeed adopt a functionalistic approach to legal systems, whereby only the outcome of judicial decisions (and the factors causally feeding into them) matters 鈥?that is, their style does not. This narrow perspective has led to arguments in favour of harmonisation of law worldwide 鈥?the thesis according to which law everywhere does and should converge so as to facilitate transnational commerce and globalisation more generally. I propose to argue that legal style matters, as law is about much more than just resolving disputes. Specifically, it is also, and most importantly, a collective statement of identity. To illustrate, I plan on analysing some of the most striking stylistic differences between French and English law, and outline the different such statements emerging from them.

https://www.cambridge.org/core/journals/international-journal-of-law-in-context/鈥?lt;/a>

When a Theoretical Commitment to Broad Physician-Aid-In-Dying Faces the Reality of Its Implementation

vanessa.zhang — Wed, 16 Oct 2019 19:04:39 +0000

Lemmens, Trudo, When a Theoretical Commitment to Broad Physician-Aid-In-Dying Faces the Reality of Its Implementation (August 28, 2019). (2019) 19(10) American Journal of Biioethics 65-68.

Abstract:

Brent Kious and Margaret Battin argue that since relief of intolerable suffering constitutes the dominant justification for physician-assisted-dying (PAD) laws, we should give access to patients who suffer intolerably from mental illness. As others, they reject 鈥榯erminal illness鈥?as a legitimate access restriction. They recognize, though, that a key challenge is to determine 鈥渨hat degree of suffering is enough to justify death鈥? Yet they fail to see how the experience in the very few jurisdictions that rely on unbearable suffering as a key threshold for access reveals the dangers of not treating PAD as a truly exceptional procedure that should not move beyond the context of end-of-life care. They fail to see this because (1) they gloss over and fail to give due weight to a longstanding human rights tradition respecting the intrinsic value of human life; and (2) do not appreciate how fraught the application of the concept of 鈥榰nbearable suffering鈥?really is as a matter of policy and practice.In this paper, I discuss these two issues, briefly expanding on what we can learn from the very few jurisdictions that have implemented broad access to PAD. Rather than promoting broader access to PAD on the basis of a theoretical commitment, we should take the compounding impact of organizing a PAD regime around the concept of unbearable suffering much more seriously.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3461020

Terrorist Speech under Bills C-51 and C-59 and the Othman Hamdan Case: The Continued Incoherence of Canada鈥檚 Approach

kroach — Fri, 04 Oct 2019 01:59:35 +0000

Roach, K. (2019). Terrorist Speech under Bills C-51 and C-59 and the Othman Hamdan Case: The Continued Incoherence of Canada鈥檚 Approach. Alberta Law Review, 57(1), 203.

Abstract:

It is argued that neither the approach taken to terrorist speech in Bill C-51 nor Bill C-59 is satisfactory. A case study of the Othman Hamdan case, including his calls on the Internet for 鈥渓one wolves鈥?鈥渟wiftly to activate,鈥?is featured, along with the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan鈥檚 acquittal suggests that the new Bill C-59 terrorist speech offence and take-down powers based on counselling terrorism offences without specifying a particular terrorism offence may not reach Hamdan鈥檚 Internet postings. One coherent response would be to repeal terrorist speech offences while making greater use of court-ordered take-downs of speech on the Internet and programs to counter violent extremism. Another coherent response would be to criminalize the promotion and advocacy of terrorist activities (as opposed to terrorist offences in general in Bill C-51 or terrorism offences without identifying a specific terrorist offence in Bill C-59) and provide for defences designed to protect fundamental freedoms such as those under section 319(3) of the Criminal Code that apply to hate speech. Unfortunately, neither Bill C-51 nor Bill C-59 pursues either of these options. The result is that speech such as Hamdan鈥檚 will continue to be subject to the vagaries of take-downs by social media companies and immigration law.

https://www.albertalawreview.com/index.php/ALR/article/view/2574

Security Sector Reform in Constitutional Transitions

vanessa.zhang — Thu, 26 Sep 2019 14:25:10 +0000

Security Sector Reform in Constitutional Transitions. Zoltan Barany, Sumit Bisarya, Sujit Choudhry, and Richard Stacey, eds (Oxford University Press, 2019).

Abstract:

Security sector reform (SSR) is central to the democratic transitions currently unfolding across the globe, as a diverse range of countries grapple with how to transform militias, tribal forces, and dominant military, police, and intelligence agencies into democratically controlled and accountable security services. SSR will be a key element in shifts from authoritarian to democratic rule for the foreseeable future, since abuse of the security sector is a central technique of autocratic government. This edited collection advances solutions through a selection of case studies from around the world that cover a wide range of contexts.

https://global.oup.com/academic/product/security-sector-reform-in-constitutional鈥?lt;/a>

Queering Queer Legal Studies

aagulto — Mon, 23 Sep 2019 16:08:32 +0000

Cossman, Brenda, Queering Queer Legal Studies: An Unreconstructed Ode to Eve Sedgwick (and Others) (2019). Critical Analysis of Law 6(1), 2019.

Abstract:

The essay explores the extant field queer legal studies and maps the multiple meanings of 鈥渜ueer鈥?deployed within it. I distinguish queer from LGBT, but resist any further disciplining of the term. I propose instead an understanding of queer legal studies as a sensibility. Neither a prescription nor a pronouncement, the article is written as an ode to Eve Sedgewick, her axioms and her reparative readings. I offer the essay as a celebration of queer legal studies to date and of its hopeful potentialities into an unknown future.

https://cal.library.utoronto.ca/index.php/cal/article/view/32562