Lieu, culture et démocratie

La question de la culture devient importante sur le plan politique quand on s'intéresse au manque apparent d'identité européenne en comparaison avec les identités nationales en Europe. Cette question a été reconnue officiellement à l'occasion de la rédaction du Traité de l'Union européenne (Maastricht). L'auteur présente une approche pour interpréter la communauté politique et l'identité culturelle selon le langage géographique de l'espace et du lieu.The question of culture becomes politically important in addressing the apparent lack of a European identity as contrasted to European national identities. This issue has gained official recognition in the wording of the Treaty on European Union (Maastricht). The author offers an outline for interpreting political community and cultural identity in the geographic language of space and place

Global Judicial Transparency Norms: A Peek Behind the Robes in a Whole New World — A Look at Global “Democratizing” Trends in Judicial Opinion-Issuing Practices

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions, and judicial members of many “ordinary” supreme courts may do so as well. The United States Supreme Court is known globally for its justices’ regular practice of issuing separate opinions, and some international scholars hold up the Court as a shining example of the common law tradition of transparency. Yet even in the United States, few if any formal norms govern the Supreme Court’s opinion-issuing practices, which have also evolved quite significantly, if incrementally, over time. Without any formal constraints whatsoever, a time might come when a bare majority of the Court could choose secrecy over transparency in the blink of an eye. Yet the many United States scholars who have long championed the dissenting opinion, and who urge that tradition on other sovereigns, generally overlook the absence of formal norms that protect federal courts’ judicial opinion-issuing practices against change. A few scholars have advanced preliminary theories that seek to explain institutional variations in opinion-issuing practices, but those theories are narrow in scope and warrant considerably more testing and refinement. A predictive model has little value unless it can be generalized beyond a small group of international and supranational courts. While theoretical models hold promise, more scholarly work is warranted to better conceptualize the competing “judicial values” that influence the practices of national and subnational multi-member courts. Scholarly research is also needed to identify the reasons for individual judicial choices about disclosing votes and publishing separate opinions. The remarkable contemporary global interest in the opinion-issuing practices of national, supranational, and international tribunals reflects our expanding vision of the rule of law and each sovereign’s role in that new world order. In our increasingly global, interconnected legal community, should judicial tribunals speak with one institutional voice? Or should a cacophony of individual judges communicate judgments, each writing seriatim? The polarized views of many scholars who advocate for and against separate opinions disregard legitimate differences in the underlying norms and values that inform judicial practices. There is no clear, “one-size-fits-all” answer. Much more comparative scholarly work remains to be done. But the global trend is clearly in favor of “democratizing” justice by defrocking the myth of judicial consensus and unanimity

Tax Ferrets, Tax Consultants, Bounty Hunters, and Hired Guns: The Property Tax Netherworld Fueled by Contingency Fees and Champertous Agreements

Contingency fee agreements between local tax assessors and contract auditors on the one hand, and property owners and private tax consultants on the other, create perverse financial incentives that undermine the integrity of state and local property tax administration. When local governments engage outside auditors to identify undervalued or escaped taxable property, the practice raises serious due process and ethical concerns. As a matter of policy, diverting a share of property tax revenue to private third parties in consideration for outsourced tax assessment services undermines public accountability and reduces net property tax revenue for local government services. And when states allow private tax consultants to use contingency fee agreements to solicit clients seeking to reduce their share of local property taxes, they unwittingly divert substantial tax revenue to private entrepreneurs. The associated private transaction cost of seeking uniformity in local tax assessment unduly burdens the entire property tax system. Because contingency fee agreements with nonattorneys are generally unregulated by state law, honest taxpayers effectively subsidize not only property tax dodgers, but also contract auditors and private tax consultants

Family Secrets and Relational Privacy: Protecting Not-So-Personal, Sensitive Information from Public Disclosure

This Article seeks to map contemporary relational privacy issues in the context of the evolving “right of privacy” in the United States. Generally, the Article explains why the so-called “personal” right of informational privacy, whatever its legal foundations, cannot be realistically confined to an individual right given the dramatic scientific and technological developments in the twenty-first century. In particular, the Article proposes that both state and federal law must grapple with the inherently relational nature of privacy interests with respect to DNA profiles, which inherently implicate the privacy interests of one’s biological relatives, whether known or unknown. Part I summarizes the historical development of the right of privacy in the United States, as well as its relational aspects that predate recognition of the “personal” right of privacy. Part II explores the early recognition of the relational aspects of tortious invasion of privacy. Part III addresses the nature and scope of “personal privacy” interests expressly recognized in federal statutes regulating freedom of information and privacy with respect to public records. Part IV explains the constitutional foundations of the American right of privacy, including the conceptual relationship between informational privacy and autonomous decision-making privacy. Part V discusses relational privacy interests in the context of DNA databanks, whether used for criminal investigations or genealogical research. The Article concludes by conceptualizing the ever-expanding American right of privacy to encompass at least close family members whose privacy may be implicated when sensitive information about a relative is at risk of public disclosure without family members’ knowledge or consent