Does Australia need new anti-terror laws?

Australia does need new anti-terror laws, but many of the measures being proposed by the Abbott government go far beyond what is required, according to this speech presented at the Lionel Murphy Memorial Lecture 2014. Introduction My topic today is one of great contemporary concern. Next week, Parliament will debate the most significant new anti-terrorism measures introduced in Australia since the London bombings of 2005. The so-called Foreign Fighters Bill is a large piece of legislation. It runs to nearly 160 pages, and deals with some of the most contentious aspects of Australian law. It seeks to greatly expand the reach of government power in a number of new areas, such as by jailing Australians for up to 10 years for entering any area declared a no-go zone by the government. You might think that Parliament will take a long, considered look at this Bill. The reality will be different. After a rushed committee process that has recommended largely cosmetic changes to the Bill, debate will begin in the Senate on Monday. This will likely conclude the next day. The Bill will then come on for debate in the House of Representatives, where it will be passed before Parliament rises on Thursday. This truncated timetable matches the government’s desire to have this legislation enacted as quickly as possible. We know the government will almost certainly get its wish because the opposition has agreed to facilitate this. Indeed, the leader of the opposition has written to the Prime Minister indicating that the opposition will ensure the bill is enacted by the end of October, that is, by the end of next week. I wonder what Lionel Murphy would have made of this process. I doubt he would have been complementary

Bull-Dog Sauce for the Japanese Soul? Courts, Corporations, and Communities—A Comment on Haley\u27s View of Japanese Law

In this short Essay, I take stock of the recent hostile takeover developments in Japan with an eye toward Haley’s conception of Japanese law and its trajectory into the future. Part I briefly outlines my major arguments in the previous essay. Readers familiar with that work can fastforward to Part II, which examines post-Livedoor developments. Part III takes stock of these developments in light of Haley’s ideas about the animating principle of law and the role of the courts in twentieth-century Japan. I conclude that Haley’s perspective is very helpful in understanding how the judiciary has responded to legal issues arising out of takeover bids thus far. But an examination of how the courts wound up with this issue and how they have resolved it to date sheds light on some potentially negative consequences and limitations of this approach, particularly as the Japanese economy and society become more heterogeneous

Original Meaning and the Precedent Fallback

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent. This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The strengths and weaknesses of the originalist methodology take on a unique valence when a primary commitment to original meaning is coupled with a fallback rule of deference to precedent. Even when the Constitution’s original meaning leaves multiple options available, falling back on precedent can channel judicial discretion and contribute to a stable, impersonal framework of constitutional law

Representative Defendants

Everyone except the defendant in a criminal proceeding somehow represents the people. Prosecutors, judges, and juries are all considered public agents. Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins. This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today. The Constitution tasks criminal defendants with significant public responsibility. They frequently represent the interests of third parties who have no direct stake in defendants\u27 criminal cases. Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public\u27s benefit. Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants\u27 role in the legal system. But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court. Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate

Jurisdição e inteligência artificial: reflexões e algumas aplicações nos tribunais brasileiros

The general objective of the article is to articulate the role of jurisdiction within a contemporary transforming circumstance: artificial intelligence in the field of law, especially in the Brazilian reality. The method used is predominantly inductive, starting from specifics for general formulations. After contextualizing the quantitative crisis in legal systems, the article turns to the study of artificial intelligence, providing important ideas for a preliminary contact with the subject, such as conceptual notes, some applications in Brazilian Courts, other possibilities of its use in the legal sphere and reflections on certain difficulties that it brings to jurisdiction. The conclusions reveal the multiple potentialities of artificial intelligence and the new challenges for legal science.El objetivo general del artículo es articular el papel de la jurisdicción dentro de una circunstancia transformadora contemporánea: la inteligencia artificial en el ámbito del derecho, especialmente en la realidad brasileña. El método utilizado es predominantemente inductivo, partiendo de lo específico para las formulaciones generales. Después de contextualizar la crisis cuantitativa de los sistemas jurídicos, el artículo se dirige al estudio de la inteligencia artificial, aportando ideas importantes para un contacto preliminar con el tema, como apuntes conceptuales, algunas aplicaciones en los tribunales brasileños, otras posibilidades de su uso en el ámbito jurídico y reflexiones sobre ciertas dificultades que trae a la jurisdicción. Las conclusiones revelan las múltiples potencialidades de la inteligencia artificial y los nuevos desafíos para la ciencia jurídica.O objetivo principal desse artigo é articular o papel da jurisdição dentro de uma circunstância transformadora contemporânea: a inteligência artificial no âmbito do direito, especialmente na realidade brasileira. A metodologia utilizada é predominantemente indutiva, partindo do específico para as formulações gerais. Depois de contextualizar a crise quantitativa dos sistemas jurídicos, o artigo dirige-se ao estudo da inteligência artificial, trazendo ideias importantes para um contato preliminar como o tema, como anotações pontuais conceituais, algumas aplicações nos tribunais brasileiros, outras possibilidades de uso no âmbito jurídico e reflexões sobre determinados problemas que traz à jurisdição. As conclusões demonstram as múltiplas potencialidades da inteligência artificial e os novos desafios para a ciência jurídica

Belgium and the European arrest warrant : is European criminal cooperation under pressure? Refusal of European arrest warrant surrender in the case Jauregui Espina as proof of failing mutual trust

In its judgment of the 19th of November 2013, Belgium’s highest court, the Court of Cassation, confirmed an earlier judgment of the so-called kamer van inbeschuldigingstelling (KI) of the Court of Appeal in Ghent in response to a surrender demanded in accordance with a number of European arrest warrants issued by Spain. This surrender was brushed off the table by the KI on the basis of a motivation basedon themutual trust concerning thecompliance with fundamental rights within the context of European cooperation in criminal matters. This motivation seems bound to raise eyebrows amongst those who advocate this classic tenet of cross-border cooperation.This article frames this recent judgement within a European context, and investigates whether there is indeeda European tendency to step away from blind trust in lieu of (successfully) invoking fundamental rights to refuse cooperation. The case under scrutiny already seems to be pointing in that direction as far as the member states are concerned. Moreover, it seems to be confirmed by recent statements within the European Court of Justice (ECJ) by the Advocates General, as well as through the new procedural wind blowing through the Union with the Procedural Roadmap. On the other hand, the ECJ shows itself more reluctant than expected, giving rise to a situation in which member states and involved individuals remain in the dark with regard to a consistent line on the complex relation between smooth European cooperation in criminal cases and respect for fundamental rights. The Union moreover appears to be increasingly moving away from cooperation in criminal cases – despite the fact that it concerns a competence enshrined in treaty law – in exchange for a harmonisation of national (minimum) standards. A noble motive, which in this case however carries the potential to further complicate, or even undermine, the necessary trust and guarantees for fundamental rights in criminal cases. The recent judgement by the Court of Cassation also demonstrates that the matter of human rights requires an adequate response, not only to permanently ensure and improve the protection of fundamental rights, but also to avoid that more and more spanners are thrown in the works of smooth European cooperation in criminal matters

Analysing Policy Arguments

Abstract The complexity and distinctiveness of policy discourse bring a need for methods and advice in both specifying and assessing policy arguments. The paper reviews, links and systematizes work in three areas: (1) general advice from 'informal logic' on the exploration and analysis of sets of propositions that make up broad arguments; (2) commentaries on important elements and tactics in policy argumentation in particular, with special attention to aspects of 'framing'; and (3) proposed methods to specify and appraise whole positions in policy argument, including the 'logical framework approach' and Fischer's Logic of Policy Question

Spillover Across Remedies

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which then carries binding effect on subsequent attempts to secure civil relief under the same statutory provision. In these and other contexts, the cross-remedial scope of substantive rules can give rise to significant doctrinal distortions, with one remedy’s influence on a substantive norm dictating the outcome of cases that would otherwise implicate different remedial considerations. This Article documents several examples of cross-remedial spillover and considers several possible responses to it. Its central conclusion is that courts can best manage the spillover problem by varying the applicability of substantive rules across different remedial domains. Such disaggregation strategies already exist to some extent in the law, implemented most often through the use of discrete, transsubstantive exceptions to remedial requirements (consider, for instance, the qualified immunity defense to damages liability under § 1983, or the harmless error exception to the reversal remedy on direct appeals). Nonetheless, as this Article demonstrates, courts can more effectively disaggregate substantive norms — and thus more effectively mitigate spillover across remedies — by utilizing a significantly more nuanced and substance-specific set of remedial exceptions. In effect, such an approach would yield hybridized rules of right-remedy law, with precedential effects extending no further than particularized combinations of substantive and remedial domains. Although that outcome might give some readers pause, it is in fact a sensible and feasible objective for courts to pursue