All posts filed under: Law

On the Fallibility of Memory and the Importance of Evidence

As we await the vote on Brett Kavanaugh’s confirmation and the results of the ongoing FBI investigation, America is left to ruminate a little longer on the testimonies he and Christine Blasey Ford gave before the U.S. Senate Judiciary Committee. Both were highly emotional and heartfelt. Ford sounded like someone who had experienced a trauma, and Kavanaugh sounded like a man falsely accused. Both left you wanting to believe the person on the stand, even if neither’s story remained completely consistent. But who should we believe? Shall we “believe the victim” or assume that the accused is “innocent until proven guilty?” A closer look at the science and nature of human memory, the historical trends on the accuracy of eyewitness testimony, and the prevalence of wrongful convictions demonstrates that the most reasonable assumption is to believe both. The Constructive Nature of Episodic Memory Sometime in the early 1980s, Sigmund Freud’s theories of the subconscious and the psychosexual stages of childhood experienced a resurgence in popular culture. However, there was one important difference: his descriptions were …

What Is the Law?

Recent debates about the looming appointment of Brett Kavanaugh to the US Supreme Court have once again indicated the depth of disagreement amongst American jurists and politicians about what legal officials should do and which legal interpretations are valid. Should a state have an interventionist Court or a restrained one? Is an interventionist Court one that takes a pragmatic approach to the law, or one that stresses paying attention to the so called ‘original meaning’ of legal texts? The intensity of these debates reflects the power granted to many legal officials in the American constitutional order. At different times, judges have handed down enormously consequential decisions that impact the way civil rights are understood, determine whether or not abortion will be legal and accessible, help us to understand the structure of American democracy, and so on. Americans are not alone in deliberating on these hot button issues—criticism of the power of legal officials, and discussion about what constitutes legitimate legal interpretation, also rage in Canada and on the European continent. These debates belie deeper and more complex questions …

Inducing People’s Employers to Fire Them Should Be a Civil Wrong

If you aren’t from Australia or New Zealand you may be tempted to think of Anzac (Australian and New Zealand Army Corps) Day as simply a variation of Veteran’s Day or Remembrance Day—but for many Aussies (and Kiwis), it’s a little bit like Veteran’s Day combined with the Fourth of July or St. Patrick’s Day. It is a deeply patriotic holiday that many regard as a semi-sacred, particularly because we celebrate it on April 25 to mark the anniversary of the day in 1915 when Anzacs arrived on the shores of Gallipoli, Turkey to fight in a battle that would result in over ten thousand soldiers losing their lives. Like it or not, Anzac Day has become patriotic mythology. To mark Anzac Day in 2015, Special Broadcasting Service (SBS) reporter Scott McIntyre took to Twitter and wrote: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan.” To make matters worse, he also asked “if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror …

The Folly of a Racialized Criminal Justice Reform Debate

In the wake of the 2014 shooting of Michael Brown and the subsequent upheavals in Ferguson, Missouri, a number of political pundits implored Americans to engage in a “national conversation about race,” particularly as it pertained to racial disparities in the criminal justice system. These exhortations were understandable. America has the highest rate of incarceration in the world and—in state prisons—blacks are incarcerated at five times the rate of whites. America has a well documented history of subjecting blacks to police brutality, and reform advocates will often claim that this racially motivated mistreatment persists today. Well intentioned activists seek to rectify this state of apparent racial injustice. However, almost four years after Ferguson, no federal legislation has been passed. While several states have enacted meaningful reforms, the system as a whole remains unaltered. What explains this failure? By all reasonable accounts, we have had the demanded ‘national conversation’ about race in the intervening years since Ferguson. Apparently, and perhaps predictably, that discussion has been unproductive. Race as a Distraction and Means of Alienation After high-profile incidents …

Portugal Poised to Write Gender Fluidity into Law

On 13 April 2018, the Portuguese parliament approved Bill 75/XIII, the ostensible aim of which is to protect the rights of transgender and intersex individuals. Looking at the details, however, it’s difficult to say if it was really created to advance the rights of these people, or if it was simply cobbled together on some sort of whim. Portugal’s last parliamentary elections were held in September 2015, and a coalition of PSD (Social-Democrat Party) and CDS-PP (Party of the Social-Democratic Center) won the most votes, but failed to secure an overall majority. This allowed the country’s leftist parties (PS – Socialist Party; PCP – Portuguese Communist Party; PEV – Green Party; and BE – Leftist Block) to form a coalition government led by PS. The PS government has to make regular concessions to these parties because it needs their votes to pass new legislation. In the case of this bill, that wasn’t really the case, since Bill 75/XIII was originally proposed by the government itself. However, later drafts included recommendations from their far-Left coalition partners …

Unpopular Speech and the Shaping of the First Amendment

American civil libertarians are justifiably proud of the broad set of rights that their country’s citizens enjoy, and the unique legal protections afforded to freedom of expression, in particular. A variety of judicial rulings throughout the twentieth century expanded the interpretation of the First Amendment to provide some of the widest speech protections in the Western world. Although exceptions exist for ‘obscenity’ and ‘fighting words,’ Americans may otherwise be as expressive or inflammatory as they please, so long as they do not espouse a direct incitement to imminent lawless action. However, rapid cultural shifts in recent years has prompted a greater willingness on university campuses to categorise and censor what is often referred to as ‘hate speech,’ which is muddying the lines around protected expression. Next year will be the 100th anniversary of one of the most famous cases in United States Supreme Court history, Schenck v. U.S., which, along with a lower court case two years earlier, Masses Publishing Company v. Patten, helped to formulate the modern interpretation of the First Amendment. In a …