This article explores how not-in-my-backyard (NIMBY) sentiments affect the implementation of new cannabis laws in California cities. Despite increasing legality and growing social tolerance, the actual status of cannabis remains controversial. Large segments of the population and local authorities remain uncomfortable with the use of cannabis and resist allowing cannabis facilities in their communities. I employ statistical analysis to understand why some jurisdictions move toward more permissive cannabis policies and others do not. The results show that, on average, socially and economically prosperous cities express higher support for cannabis legalization, but cannabis businesses are more likely to receive permits in cities that are socially and economically distressed. The disparity between demand (white middle-class communities) and supply (poor Hispanic communities) demonstrates that stereotypes generated by the war on drugs have not disappeared after the passage of new cannabis laws and continue to perpetuate the marginalization of disadvantaged individuals and places.

French whistleblower legislation establishes a unified legal regime for the treatment of reports and for the protection of whistleblowers. Drawing on French whistleblower law, recently amended by the transposition of Directive 2019/1937 of 23 October 2019, this article examines whether the specific features of whistleblowing in relation to public health and environmental risks are adequately addressed by this unified regime. The article identifies four key factors for the effective handling of whistleblowing relating to public health and the environment: (1) the possibility of protecting whistleblowers who report facts gathered outside the workplace; (2) the possibility of protecting legal persons as whistleblowers; (3) the possibility of carrying out in-depth investigations to characterise the reality of the risks reported; and (4) the possibility of archiving whistleblowing in order to detect weak signals of risks over the long term. In these four areas, the article provides a nuanced diagnosis of the situation in French law and offers suggestions for improvement.

This article examines the precedential value of Russia’s ‘special military operation’ against Ukraine in February 2022 for the purpose of interpreting the rules of jus contra bellum. Following the methodology set down by the ICJ in its Nicaragua judgment, self-defence is identified as the legal basis explicitly invoked by Russia in order to justify its operation in Ukraine. The authors then examine closely the reactions by third states with respect to the legality of Russia’s military operation and establish that the legal arguments put forth by Russia – including, more specifically, an innovative reading of the right to self-defence of entities unilaterally recognized as states – have been overwhelmingly rejected by third states. On that basis, the authors conclude that this precedent does not challenge the established understanding of the prohibition to use force in international relations and of its exceptions.

How do states build their informational capacity? This article argues that distributive politics conditions how the state’s capacity develops. I study civil registration, where citizens comply with the state’s informational demands in exchange for documentary proof of identity, which may simultaneously facilitate access to public resources and exposure to taxation. Though the rich are particularly threatened by taxation, the narrow benefits of registration induce their compliance over that of the poor. I leverage a set of reforms in early postindependence Tanzania which provide quasi-random variation in citizens’ registration status and show that registration promotes access to narrow-based resources, rather than broad-based ones, while increasing tax payment. In turn, citizens’ decisions to comply reflect the economically stratified local incidence of these net benefits. The results suggest how nominally universal state-building schemes can have regressive effects on the state’s coverage.

Hunger strikes are commonly repressed in prison and seen as disruptive, coercive, and violent. Hunger strikers and their advocates insist that incarcerated persons have a right to hunger strike, which protects them against repression and force-feeding. Physicians and medical ethicists generally ground this right in the right to refuse medical treatment; lawyers and legal scholars derive it from incarcerated persons’ free speech rights. Neither account adequately grounds the right to hunger strike because both misrepresent the hunger strike as noncoercive and nonviolent. I articulate an alternative, dual account of the right to hunger strike. On the remedial argument, the right to hunger strike should be legally protected as a right to petition for redress, in light of incarcerated people’s structural vulnerability to abuse and given inadequate grievance mechanisms. The constructive argument derives the right to hunger strike from the right to resist oppression and stresses the normative permissibility of the use of coercive tactics to defend one’s liberty interests in the face of carceral oppression.

This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call ‘constitutional emotivism’. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. In a sentence, constitutional emotivism is the conflation of moral disagreements with constitutional rights grievances. When this conflation occurs, rights conflicts that never needed to occur in the first place reinforce rights talk and its uncompromising nature.

The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.

Political attempts to control how the past may be represented have flourished in the twenty-first century. Russia participates in this trend, having taken steps to legislatively and juridically safeguard the legacy of the USSR’s involvement in World War II. This has institutionalized an interpretation of the fight against Nazism that was already widely held in society, making the Russian case a “hard test” for evaluating when the violation of a historical norm is deemed appropriate and what the impact of a memory law might be relative to other factors. Drawing on two vignette experiments conducted in 2021, our article demonstrates both that the discursive context in which a controversial statement about the past is made matters when respondents assess whether the person making it should be punished and that criticism of a historical norm is more likely to be accepted when it emanates from an in-group member. We also find that the state has limited ability to influence societal attitudes regarding history. Moreover, a willingness to defend state-led interventions into how the past is depicted aligns with support for the political system but the latter does not necessarily overlap with individuals’ historical views, underscoring the multidimensional nature of collective memory.

This article presents a legal history of US citizenship in Guam. I argue that members of Guam’s Congress mobilizing for US citizenship in the 1930s and in the immediate aftermath of World War II offer a powerful and instructive example of popular constitutionalism, or the interactive, extrajudicial process that generates constitutional meaning. Guamanians made constitutional claims to US naval leaders and lawmakers, arguing that colonized people living in the US empire should be US citizens despite ambiguous Supreme Court precedents in the Insular Cases, congressional inaction, and naval obstruction. Guamanians interpreted the Constitution in a way that pressured and influenced naval leaders to support and US lawmakers to ultimately enact legislation that extended citizenship to Guam. This legal history demonstrates the complexity of popular constitutionalism within the context of US empire. By claiming that they should be considered US citizens after the United States formally annexed Guam after the Spanish-American War, Guamanians drew on the Constitution to demand equality, dignity, and full inclusion in the US polity for colonized people. US naval leaders and lawmakers turned this egalitarian reading of the Constitution to their own strategic advantage, however, deploying it as a valuable piece of Cold War propaganda. This article thus provides a useful example of the ideological indeterminacy of popular constitutionalism. The Constitution can be interpreted by marginalized populations to demand equality and inclusion. But the Constitution can also be interpreted by the military and congressional leaders of a global empire to maintain systems of power, oppression, and subordination.

This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides the most compelling explanation for each rights-limiting decision. Just as cutting off one of Cerberus’s heads would diminish his effectiveness as a guard dog, rejecting either of the modes of reasoning would limit decision makers’ capacity to explain their decisions and undermine a culture of justification. The article makes a theoretical case for retaining all three modes of reasoning and sets out a doctrinal approach to determining when each is applicable.

EU citizenship, now so central to the European Union's project, remains a highly contested concept in respect of its meaning, its scope, and its purpose. By considering the large body of legal texts and their travaux préparatoires from the 1972 Paris European Council until the adoption of the Maastricht Treaty in 1992, we have explored what the original drafters had in mind in developing the concept of EU citizenship and, crucially, what they did not. The article argues that the notion of European citizenship was seen as a tool to define European identity, and thus to continue the building of the European Union as a whole. European citizenship was thus viewed through a constitutional prism from the outset. The constitutional approach to the concept of European citizenship fed into the wider constitutionalisation project under the Maastricht Treaty and, later, permeated the case law of the Court of Justice of the European Union. We wish to argue that this focus on the constitutional nature of EU citizenship overlooked the more practical implications of citizenship, such as how to manage immigration flows or the infrastructure changes needed in the host state to accommodate a significant number of arrivals of EU citizens (in particular in respect of housing and social welfare benefits). It took more than 20 years after the introduction of EU citizenship for the Court of Justice to become aware of the practical, as opposed to constitutional, implications of the direction of travel it had pursued. By that time, it was too late for the United Kingdom, one of the countries which had received the largest number of EU citizens; the UK voted by a narrow margin to leave the European Union.

This paper sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial revision, including recognition of the fact that cases such as Ropaigealach v Barclays Bank plc and Horsham Properties Group Ltd v Clark were reversed as long ago as 2008. More significant is the need to ensure that accurate knowledge of section 126 is conveyed to those who advise mortgagors at risk of possession. This is particularly the case given the ‘cost of living crisis’ and the backlog of possession claims arising out of the Covid-19 pandemic. Any mortgagees tempted to expedite recovery of mortgaged property by enforcing the mortgage extra-judicially should be directed to section 126 and the requirement it imposes to obtain a court order.

This article investigates the case of Libya; the way the International Criminal Court responded to it; what went wrong; and what the Court could learn from the case for its future. It attempts to show that the regime change strategy followed in Libya jeopardized the international criminal justice mandate of the Court, created a failed state conundrum, and rendered the Court's intervention counterproductive. Also, in cases like Libya, where judicial intervention sits alongside military intervention, it is difficult for the Court to claim jurisdiction independent of untamed realpolitik while finding the right constituency, which is an urgent issue that remains unsolved. This research concludes that only a dispute settlement approach oriented towards a peacemaking mandate, and its incorporation into the jurisdiction of the Rome Statute, can protect the Court's independence and international criminal justice promises regarding the different limitations the Court faces.

This article contributes to the understanding of why states resort to targeted, or smart, sanctions to meet the threat of cyber intrusions and whether this type of response is a forced measure or an effective tool to halt, prevent and punish attacking states. The tools of analysis used in the article are legal positivism and political theories, including Mancur Olson's theory of groups and Francesco Giumelli's analytical framework for assessment of sanctions. The authors address the effectiveness of sanctions as a reaction to cyber-enabled activities through the lens of regulation introduced in the United States, the European Union and the United Kingdom, which are the most developed counter-cyber sanction regimes, analysing publicly known cases of cyber-related sanctions.

In 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. In doing so, we deploy Clara Sandoval's typology of different forms of societal change – ‘ordinary’, ‘structural’ and ‘fundamental’ – to guide our thinking and analysis, and tackle the most fundamental of questions in peace agreement literature and practice: whether, in fact, peace agreements can undo the fundamental causes that trigger and sustain violence. The article outlines the transformative promise of the Agreement, the multiple interlocking factors that have undermined that promise and the role of civil society in sustaining that transformative potential. Our conclusions point to a more nuanced understanding of what constitutes the ‘ordinary’ in transitional settings and a caution against the hyperbole of the transformative. We view transformative change as slothlike in its emergence, specifically grounded in progressive and cumulative re-orderings that can accompany peace processes. Rather than a moment of radical change, transformation follows from the cumulative impact of symbolic gesture, specific legal provision, procedural practice, mechanisms of accountability, and an engaged and vibrant civil society.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts’ decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority’s legal source and the chronology of its establishment may influence the court’s ability to review such rules and the case’s outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review.

This article explores how complaint investigations undertaken by health ombudsman contribute to the improvement of the healthcare system. Using a qualitative case-study approach, semi-structured interviews were conducted with participants form the Scottish Public Services Ombudsman (SPSO) and three health boards within its jurisdiction. Health board participants were frustrated by complaints process used by the SPSO, in particular the lack of communication during an SPSO investigation especially when there were differences in clinical judgment. Using Braithwaite’s typologies of motivational postures and Hertogh’s models of administrative control it was found that a sense of capitulation was the primary determinant in ensuring health board compliance with SPSO recommendations and that the relationship between SPSO and health boards was predominantly coercive in nature. For the SPSO to be more effective in contributing to system improvement requires it to review its role and means of conducting complaint investigations.