Human Rights Dynamics of Abortion Law Reform
In: Human Rights Quarterly, Band 25, S. 1-59
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In: Human Rights Quarterly, Band 25, S. 1-59
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Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay closes with a discussion of the somewhat surprising potential that §5 of the Fourteenth Amendment offers for originalist law reform when situated within a framework of judicial departmentalism. Originalism provides both a foundation for understanding the breadth of Congress's enforcement power under §5 and also a means of grounding enforcement legislation other than existing judicial doctrine. The combination of judicial departmentalism and originalism can be particularly potent for generating originalist law reform in areas in which existing judicial doctrine underenforces substantive Fourteenth Amendment protections when measured against the original law of the Fourteenth Amendment.
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Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay closes with a discussion of the somewhat surprising potential that §5 of the Fourteenth Amendment offers for originalist law reform when situated within a framework of judicial departmentalism. Originalism provides both a foundation for understanding the breadth of Congress's enforcement power under §5 and also a means of grounding enforcement legislation other than existing judicial doctrine. The combination of judicial departmentalism and originalism can be particularly potent for generating originalist law reform in areas in which existing judicial doctrine underenforces substantive Fourteenth Amendment protections when measured against the original law of the Fourteenth Amendment.
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In: Human rights quarterly, Band 25, Heft 1, S. 1-59
ISSN: 1085-794X
The legal approach to abortion is evolving from criminal prohibition
towards accommodation as a life-preserving and health-preserving option,
particularly in light of data on maternal mortality and morbidity. Modern
momentum for liberalization comes from international adoption of the
concept of reproductive health, and wider recognition that the resort to
safe and dignified healthcare is a major human right. Respect for women's
reproductive self-determination legitimizes abortion as a choice when
family planning services have failed, been inaccessible, or been denied by rape. Recognition of women's rights of equal citizenship with men
requires that their choices for self-determination be legally respected,
not criminalized.
In: Studies in international law
1. Introduction -- I. Lifting the Law Reform Bonnet -- II. Beyond Great Britain -- III. Overview -- IV. Some Final Preliminaries -- 2. The Origins of the Law Commissions -- I. Pre-1965 -- II. How Soon is 'Now': Why 1965? -- III. Pressures for a Scottish Law Commission -- IV. The Law Commissions Act 1965 -- V. Consequent Issues -- 3. The Scope of Commission Activity -- I. The 1965 Act and Discretion -- II. The Need to Control and Facilitate the Exercise of Discretion -- III. Previous Deficiencies in the Control and Facilitation of the Commissions' Exercise of Discretion -- IV. The Project-Selection Criteria -- V. Developing and Strengthening the Criteria -- VI. Conclusion: Clarifying and Securing the Scope of Commission Activity -- 4. The Extent of Implementation -- I. Preliminary Issues -- II. Reasons for Non-Implementation -- III. The Importance of Being Implemented -- IV. Attempts to Improve Implementation -- V. Conclusion: Quality Over Quantity -- 5. The Codification Task -- I. Definition of Codification -- II. Reasons for Tasking the Commissions with Codification -- III. Pre-Existing Obstacles to Codification -- IV. Developments Reducing the Need for Codification -- V. The Commissions' Codification Track Records -- VI. Conclusion: Substance Over Style -- 6. From Harmonisation to Devolution and Brexit -- I. Collaborative Projects -- II. Individual Projects -- III. Devolution -- IV. Conclusion: Separate Commissions Working in Sync -- 7. Law Reform... Now? -- I. Servicing our Law Reform Machinery -- II. Proposed Amendments to the 1965 Act -- III. Final Remarks for Great Britain and Beyond
In: Journal of Empirical Legal Studies, Band 11, Heft 2, S. 378-407
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In: Third world quarterly, Band 29, Heft 6, S. 1087-1099
ISSN: 1360-2241
In: The political quarterly, Band 4, Heft 3, S. 357-372
ISSN: 1467-923X
World Affairs Online
In: Mediterranean politics, Band 13, Heft 3, S. 333-352
ISSN: 1743-9418
In: Juridica international 8
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Working paper
In: Review of African political economy, Band 35, Heft 117
ISSN: 1740-1720
Poverty levels in Zambia are historically associated with development in the mining sector. As long as the sector was performing well and enjoying high international prices for copper, the revenues to government were high and the government could afford the provision of, for example, public health. It is however paradoxical that in the current upturn of commodity prices, the Zambian government has not obtained sufficient revenues to enable it to provide the required public goods. Close scrutiny of the way the state‐owned mining company, Zambia Consolidated Copper Mines (ZCCM), was privatised in the late 1990s reveals that the agreements made between the government and the new mining companies were lopsided. As a consequence, the government has been unable to earn revenues to the same extent as countries like Chile prompting civil society to pressure the government to renegotiate the agreements. The government has, however, chosen the path of law reform to increase the taxation on foreign‐owned mining companies.
In: (2011) 20 Social & Legal Studies 331-348
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