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            <title><![CDATA[Lost and Found: The Forgotten Origins of the “Cruel and Unusual Punishments” Prohibition]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0013</link>
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            <pubDate>Thu, 19 Jun 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment’s prohibition against “cruel and unusual punishments” to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution’s Eighth Amendment (1791). In 1969, in examining the Eighth Amendment’s “original meaning” in an influential law review article, one legal scholar, Anthony Granucci, traced the history of the English Bill of Rights and the Eighth Amendment. He described the English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship,” concluding that American lawmakers, in adopting that prohibition, misinterpreted “the intent of the drafters of the English Bill of Rights.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”As this Article shows, the U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” terminology. For example, in Gregg v. Georgia (1976), the Supreme Court wrote that the “cruel and unusual punishments” phraseology “first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary.” Relying on Anthony Granucci’s Eighth Amendment scholarship, Justice Thurgood Marshall had previously observed in his concurrence in Furman v. Georgia (1972) that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” While jurists and legal scholars have long assumed that the “cruel and unusual punishments” terminology originated in the late 1680s as part of the so-called “Glorious Revolution” of 1688–1689 that deposed King James II and brought William and Mary to the throne, this Article demonstrates that the conventional account of the origins of that phraseology—spelled “cruell and unusuall punishments” in some early English sources—is woefully incomplete.The standard account of how that terminology emerged during England’s Revolution of 1688–1689, popularly known as the “Glorious Revolution,” fails to consider long-forgotten, far earlier uses of it. Those usages stretch back as far as the early 1600s, during the reign of King James I (James VI in Scotland), although they initially appear in non-legal contexts in the early 1610s and, later, in two written remonstrances—or protests—of Irish-Catholics in Ireland in the early 1640s. In particular, the early usages of the cruel and unusual punishments phraseology appear in the index and marginalia of a history of Venice, originally written in French by Thomas de Fougasses, translated from French into English by “W. Shute,” and published in London in 1612; in English courtier and poet George Wither’s satire, Abuses Stript, and Whipt, first published in the early 1610s, and then reprinted in a later published collection of Wither’s poetry, Juvenilia; and in two 1642 Irish-Catholic remonstrances—the Ulster Remonstrances—explaining the causes of an Irish rising that began in October 1641. While the relevant references in the Venetian history and Wither’s satirical lines of verse both describe barbaric methods of execution, the references in the 1642 Ulster Remonstrances are associated with non-lethal corporal punishments.Capital and corporal punishments were once commonly used in England. In addition to horrific methods of execution such as hanging and drawing and quartering and burning at the stake, draconian corporal punishments were inflicted, including on members of the learned professions to chill speech. For example, in the 1630s, at the hands of prerogative courts such as England’s now-notorious Court of Star Chamber and Ireland’s Court of Castle Chamber, religious dissenters and opponents of Stuart rule were subjected to, or threatened with, non-lethal but painful punishments such as the pillory, branding, whipping, and mutilation. During King Charles I’s reign, William Laud, the Archbishop of Canterbury, insisted on strict conformity to Church of England religious practices, and on orders of the Star Chamber, prominent Puritans such as lawyer William Prynne, physician John Bastwick, and clergyman Henry Burton were fined, imprisoned, pilloried, and had their ears cut off for their writings. Adhering to the advice of John Finch, the Chief Justice of England’s Court of Common Pleas, William Prynne—already stripped of his Oxford University degree and expelled from Lincoln’s Inn, the English Inn of Court that had, two decades earlier, admitted George Wither as a member—was also branded on the cheeks with the letters “S.L.” for “seditious libeller.” The Court of Star Chamber and its ecclesiastical equivalent, the Court of High Commission, were both abolished by England’s Parliament in 1641, in part because of these unpopular punishments and the use by those prerogative courts of an inquisitorial procedure known as the oath ex officio. The oath ex officio required someone to answer any questions on pain of contempt and frequently compelled self-incrimination. In the 1630s, that oath had been used against Puritans, and for refusing to take the oath, John Lilburne—a Puritan who later fought on the side of Parliament in the English Civil War and led the Leveller movement—was punished by the Star Chamber and ended up in the pillory.This Article details the earliest usages of the cruel and unusual punishments terminology and the historical contexts in which those usages appear. In the case of the Ulster Remonstrances, England had colonized Ireland decades before the 1641 Irish rising, with English and Scottish settlers establishing the Plantation of Ulster in 1609 and, over many decades, systematically dispossessing the native Irish of their ancestral lands. The Court of Castle Chamber in Ireland, like England’s Star Chamber, resorted to excessive fines and inhuman and humiliating punishments such as stigmatizing (i.e., branding of the skin) and the pillory. The two 1642 Ulster Remonstrances of Irish-Catholics—drafted in the wake of earlier written objections of Irish-Catholics to Stuart era abuses, including excessive fines, the use of the pillory, and mutilations—specifically complained about “heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments.” That wording resembles language in the Grand Remonstrance passed by England’s Parliament in November 1641, although the Grand Remonstrance—shepherded through Parliament by John Pym, an anti-Catholic English politician who risked his own liberty to oppose tyrannical Stuart practices, with Charles I even attempting to arrest him and other members of Parliament—did not contain the “cruel and unusual punishments” terminology.The Grand Remonstrance, a list of more than 200 grievances presented to Charles I in early December 1641 after a long period of personal rule (1629–1640) in which Charles I reigned without Parliament, preceded and helped precipitate the English Civil War (1642–1651). That civil war followed considerable Puritan migration to the New World due to religious persecution of those opposing Church of England practices, as well as the adoption of the Massachusetts Body of Liberties (1641) drafted by a law-trained Puritan preacher, Nathaniel Ward, who emigrated to the Massachusetts Bay Colony after being removed from his pulpit in England. The English Civil War eventually led to Charles I’s treason trial and, ultimately, his execution in 1649. The Massachusetts Body of Liberties was the first legal code in New England, and it referred to both torture and cruel punishments. Clause 45 of the Body of Liberties provided in part: “No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty.” “For bodilie punishments,” its next provision, Clause 46, read, “we allow amongst us none that are inhumane Barbarous or cruell.” Because of the prior appearances of the cruel and unusual punishments terminology as early as the 1610s and in the 1642 Ulster Remonstrances, the use of that terminology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[Intergovernmental Conflicts in a Time of Pandemic: State and Municipality Power Struggles in the United States and Brazil]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0014</link>
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            <pubDate>Thu, 29 May 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[This article examines the issue of overlapping and competing responsibilities and competences that arose in the United States and Brazil, following the COVID-19 global emergency of 2020. It considers the way in which the diffusion of power within both federal systems generated intergovernmental conflict and the extent to which the differences in federal design shaped the way in which these conflicts could be managed and resolved.]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[Protecting Commoners’ Goods Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0012</link>
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            <pubDate>Sun, 20 Apr 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[Proceeding from the assumption that Harvard Law Professor Adrian Vermeule’s theory of common good constitutionalism must ultimately prevail in the debate about what Anglo-American law is, this Article contributes to the discussion by proposing how his skeletal theory can serve the interests of outsiders. Building on the perspective informing the author’s previous essay The Jurisprudence of Trousered Apes, the Article focuses on what common law constitutionalism means for commoners. It seeks to anticipate and allay that natural anxiety which the revival of Tradition provokes for outsiders by demonstrating how common good constitutionalism can be employed to advance pluralism. For this demonstration, it sketches a constitutional framework for producing pluralist outcomes based on the principle of subsidiarity, a pillar of the classical legal tradition. It contends that classical subsidiarity can produce a constitutionalism, one that the Article denominates subsidiarity municipalism, to assist commoners and other dissenters from Tradition in protecting their temporal gains.]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[Originalism, Illegal Immigration, and the Citizenship Clause]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0011</link>
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            <pubDate>Thu, 17 Apr 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[The Citizenship Clause of the Fourteenth Amendment confers birthright citizenship in cases of lawfully domiciled aliens, but not in cases of illegal immigration or legal visitation by aliens. The best reading of the original understanding in the 1860s is that the Clause impliedly requires parental domicile in the United States, domicile in turn requires some degree of allegiance, but parents who have not been received into the U.S. cannot pay any allegiance, so these requirements can only be reconciled by domicile de jure — that is, the domicile must be legal. This dichotomy between de jure and de facto domicile was well-known in the 1860s. In cases of illegal immigration, citizenship for U.S.-born children should be sought via naturalization, and the same in cases of legal visits by temporary foreign visitors. Intertwined with birthright citizenship is the Clause’s guarantee of state citizenship, and scholars who say that Washington D.C. is out of compliance are correct, because the federal government has failed to ensure state citizenship there.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[Wondrous Dark: Visual Art as Free Speech]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0010</link>
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            <pubDate>Fri, 21 Mar 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[There is general agreement that art is protected by the First Amendment. But what is art? As the nature of art has itself radically evolved, the notoriously unanswerable question has become even knottier. Courts have addressed the issue with a mélange of old fashioned and ill fitting criteria, but one Supreme Court dissenter has proffered an alternative, implicitly accepting the theory of the renowned art critic and philosopher, Arthur Danto.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[Imagining Justice and Cancel Culture Through Iris Murdoch’s “enchanter” Characters]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2024-0004</link>
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            <pubDate>Mon, 17 Feb 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[In TJI: WAN, Lyndsey Stonebridge weaves a multi-faceted reminiscence of how twentieth-century literary and philosophical authors like Hannah Arendt, Rebecca West, and Iris Murdoch “forge[d] new literary idioms of judgment in their post-war encounters with the law.”Living and writing during the Nazi war crime trials, these astute female authors gave unique voice to the unprecedented juridical dilemmas of their time. Presciently, they each sensed an entire new world whose inhabitants were quite literally unable to imagine a form of legal justice adequate enough for the unspeakable crimes against humanity that the Adolf Eichmann and Nuremburg courts were attempting to adjudicate. In this article, which is an interdisciplinary examination of how literature can reveal solutions to the problems faced both in law and our broader societal forms of justice, I will examine how one of these writers—British novelist Dame Iris Murdoch—imagined this new genre of post-war evil as emanating principally from the acts of her characters in the everyday modern world. I will show how Murdoch saw modern evil not only as existing in the intentional acts of the murderous tyrants and dictators of the twentieth century, but also within our day-to-day egoistic actions in which we routinely—and largely unconsciously—fail to pay attention to the lives and needs of other people. My aim is to demonstrate how today’s extra-juridical trend known as “cancel culture” is a direct consequence of the inattention and lack of love we often exhibit towards others, which Murdoch repeatedly decried in her literary and philosophical works, as well as a continued failure in our contemporary ability to imagine this modern brand of evil and the appropriate methods of justice for its consequences. By applying Murdoch’s metaphysics regarding both the individual and collective task of achieving true moral growth—as exemplified by the complex plots, themes, and evil “enchanter” characters in her novels—to the trend of cancel culture, one can achieve an historically informed understanding of why the practice is alluring yet ultimately dangerous to both the legal system and our contemporary societal structure writ large. he udicial magination riting fter uremburg LS, TJI: WAN3 (2014). yndsey tonebridge he udicial magination riting fter uremberg]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[The Dobbs Difference: the Rhetoric of Overruling in the United States Supreme Court]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2024-0006</link>
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            <pubDate>Thu, 23 Jan 2025 00:00:00 GMT</pubDate>
            <description><![CDATA[This article examines the rhetoric used in the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization to describe the decisions it overruled. We ask whether that rhetoric marked a stark departure in the way the Court has treated other cases in which precedent was overturned. To answer that question, we examine every overruling case in the history of the Court. We argue that, in some ways, Dobbs was continuous with developments in that history and, in other ways, marked a stark departure in the Court's rhetoric of overruling. We conclude by considering the implications of the rhetoric of overruling for legitimacy of the Supreme Court.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[Can a U.S. Supreme Court Holding Die Without the Court Itself Administering the Coup de Grâce?]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2024-0003</link>
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            <pubDate>Wed, 13 Nov 2024 00:00:00 GMT</pubDate>
            <description><![CDATA[Can a holding by the U.S. Supreme Court interpreting a provision of the U.S. Constitution—which holding the Court never reversed or qualified—ever be treated as a nullity by lower courts? Suppose the reasoning on which that holding stands has come to be recognized as so unsound, so contradicted by every interpretive theory one could deploy on its behalf, that the holding stands on thin air, with nothing to support it. Could such a holding properly be ignored by lower courts as having no force? Can a lower court act contrary to the holding, or must it continue to enforce the holding unless and until the Supreme Court explicitly repudiates it? This article explores that question through the vehicle of a case that squarely illustrates the issue.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[The Prosecutor’s Evolution]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2025-0001</link>
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            <pubDate>Mon, 28 Oct 2024 00:00:00 GMT</pubDate>
            <description><![CDATA[It is axiomatic that American prosecutors possess significant discretion. What varies among prosecutors is how they use their discretion. How they use their discretion derives from how prosecutors perceive their role. Different prosecutors perceive their role differently. Some see themselves as representing the victim and others see themselves as ensuring just outcomes. These differences emerge from the American prosecutor’s distinct evolution. Over 200 years, the American prosecutor has transformed through various stages. The private prosecutor, an attorney the victim hired, originated from the British system. With the expansion of democratic institutions, the prosecutor became political, representing a particular political party’s interests. Abuses led to prosecutors becoming more professional, representing the state. This disconnected prosecutors from their community. Proactive prosecutors emerged to reconnect prosecutors to their community. Then, in 2016, a new wave of prosecutors emerged. These prosecutors saw themselves protecting defendants from a punitive criminal justice process.This article explores these different perspectives, looking for commonalities that can define the American prosecutor’s identity. Three emerge. First, prosecutors are public servants. Though they may serve different publics and do so in different ways, all seek to serve public interests. Second, they represent the community. Prosecutorial policies and case selection derive from community values and priorities. Finally, prosecutors are opportunistic. When given the opportunity to expand their discretion]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[Citing Jorge Luis Borges]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2024-0001</link>
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            <pubDate>Tue, 15 Oct 2024 00:00:00 GMT</pubDate>
            <description><![CDATA[The works and ideas of Jorge Luis Borges have had a major impact on literature, movies, art, philosophy, and pop culture. His influence in these areas has been documented and studied. To date, however, there has been no significant effort to catalog or discuss the impact Borges has had on legal scholarship. The impact is significant. Hundreds of law journal articles, essays, and book reviews reference Borges and his work. For instance, authors have used Borges stories as a lens through which to analyze legal doctrines and developments. Others have quoted Borges to help convey particular ideas or principles. This paper aims to identify all references to Borges and his work in the legal scholarly literature, and to analyze the ways authors rely on Borges to determine the nature and extent of Borges's influence on legal scholarship. My aim is primarily to evaluate the scholarly treatment as a whole, rather than focus on individual cases. As such, I have attempted to compile a comprehensive list of Borges references in the legal scholarship to date. If I have omitted any scholarly works that should be included, please let me know and I will happily add them.]]></description>
            <category>ARTICLE</category>
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        <item>
            <title><![CDATA[The Vietnam War, Imperial Presidents, and Limited Democracy]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2024-0002</link>
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            <pubDate>Thu, 03 Oct 2024 00:00:00 GMT</pubDate>
            <description><![CDATA[During the Vietnam conflict presidents Lyndon Johnson and Richard Nixon wielded war powers without congressional declarations of war. The legislature and judiciary more or less deferred to these “Imperial Presidents” rather than check or balance their war policies. This deferment seriously compromised and, in some cases, even nullified representative democracy. Populist democracy, in the form of the Antiwar Movement, fared little better. Millions of citizens repeatedly expressed their opposition to the war in mass demonstrations, especially after 1967. And yet active American combat in Vietnam continued until 1973. The ineffectiveness of the Antiwar Movement is consistent with the Elite Theory of democracy wherein a small minority of powerful people in corporations (including media corporations) and government offset and counteract populism. Ironically, in this case, the Imperial Presidency also overwhelmed legislative and judicial elites. Thus, in the most dramatic subset of a greater post-World War II phenomenon, the Vietnam War featured a monarch-like executive using war powers that circumvented both direct (populist) and indirect (representative) aspects of democracy.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[The Constitution, Invasion, Immigration, and the War Powers of States]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0014</link>
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            <pubDate>Sat, 27 Jan 2024 00:00:00 GMT</pubDate>
            <description><![CDATA[By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[Rise of Complete Substitutes and Fall of the Origination Clause in the Post-Ratification Era]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0016</link>
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            <pubDate>Fri, 22 Dec 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[The Constitution’s Origination Clause requires the House of Representatives, the chamber considered closest to the people, to originate all bills for raising revenue. This clause allows Senate amendments to these bills. However, may Senate amendments completely replace House revenue bills with new revenue bills, as occurred with the Affordable Care Act of 2010?My previous research argued the original public meaning of amendment—how a “reasonable speaker of English” would have understood that word in the founding era—disallows complete substitutes. Historical legal arguments justifying the Senate’s complete substitutes rely on quotes from Thomas Jefferson’s important Manual of Parliamentary Practice (1801) saying, for example, “[a] new bill may be ingrafted by way of amendment on the words ‘Be it enacted[.]’” These arguments also cite examples of complete substitutes in Congress from the mid-to-late 1800s, particularly the Senate’s attempted substitute to a House revenue bill in 1872. But no previous research has examined congressional amendment practice during the important post-ratification period of 1789 to 1799 (First through Fifth Congresses), which represents the republic’s first decade and which can be the most suggestive of original meaning.This article tracks the rise of Congress’ complete substitutes—whether to revenue or other legislation—during the first decade and even until 1805. Throughout the entire period under examination, the Senate made no complete substitutes to House revenue bills. The first actual complete substitute to any legislation occurred to a Senate resolution in 1800 when Jefferson was that chamber’s presiding officer, and this episode obviously occurred after the first decade. There was thus no trace of any accepted, let alone consistent, practice of complete substitution in the earliest Congresses. Accordingly, the post-ratification history of amendment practice confirms the original meaning of amendment and indicates Jefferson’s quotes and the historical legal arguments lack a significant foundation in originalism. Later Senate practice as in 1872 allowing complete substitutes to House revenue bills, which Jefferson surely enabled, disregarded the original meaning of amendment in the Origination Clause. But perhaps—given this article’s findings—this original meaning will return to prominence.]]></description>
            <category>ARTICLE</category>
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            <title><![CDATA[Insurrection, Disqualification, and the Presidency]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0015</link>
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            <pubDate>Thu, 14 Dec 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision's reach by setting out the broad case for Section 3's application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President's election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.]]></description>
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            <title><![CDATA[Transatlantic Justice: Slavery in the Judicial Imagination]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0012</link>
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            <pubDate>Fri, 03 Nov 2023 00:00:00 GMT</pubDate>
            <category>ARTICLE</category>
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            <title><![CDATA[Magical Thinking and Appearance-based Recusal]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0011</link>
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            <pubDate>Fri, 27 Oct 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.]]></description>
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            <title><![CDATA[Oh What Tangled Webs We Weave—Unpacking (and Unpicking) the Majority Opinion in Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women's Health Organization et al.]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0009</link>
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            <pubDate>Sat, 07 Oct 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[This paper evaluates the majority judgment in the United States Supreme Court in Dobbs v. Jackson Women's Health Organization. It is suggested that much of what is said in the majority opinion ostensibly appears eminently defensible if viewed solely from a narrowly legalistic perspective. But closer analysis suggests that the majority's reasoning has some weaknesses when viewed within that limited paradigm. A further line of inquiry assesses whether adopting such a ‘legalistic’ approach to the question of abortion rights is in any event an appropriate position for the Court to adopt. The final section of the paper explores two additional contextual issues: the first relates to the personal ethical integrity of some of the majority judges; the second to the adequacy of State political processes as a means to address the abortion rights controversy.]]></description>
            <category>ARTICLE</category>
        </item>
        <item>
            <title><![CDATA[From Crown Privilege to State Secrets1]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0010</link>
            <guid isPermaLink="false">/article/10.2478/bjals-2023-0010</guid>
            <pubDate>Sat, 07 Oct 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of national security. It is apparent that this privilege is subject to abuse by the executive branch to shield activities and personnel from judicial scrutiny and legal inquiries for reasons other than to protect national security. The privilege derives from British and Scottish doctrines of Crown Privilege that allow government to withhold evidence from legal proceedings to protect the public interest. The derivation of the state secrets privilege from the tradition of Crown Privilege has never been thoroughly explored. This article traces the influence of Crown Privilege in the development and evolution of the state secrets doctrine in the United States.]]></description>
            <category>ARTICLE</category>
        </item>
        <item>
            <title><![CDATA[Lear's Daughters? Unenumerated Fundamental Rights and the Constitution]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0008</link>
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            <pubDate>Sat, 30 Sep 2023 00:00:00 GMT</pubDate>
            <description><![CDATA[How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this shallow approach. The underdeveloped character of the argumentation on this topic stubbornly remains one of the most glaring shortfalls of modern constitutional law.]]></description>
            <category>ARTICLE</category>
        </item>
        <item>
            <title><![CDATA[Editor's Note]]></title>
            <link>https://reference-global.com/article/10.2478/bjals-2023-0020</link>
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            <pubDate>Thu, 07 Sep 2023 00:00:00 GMT</pubDate>
            <category>ARTICLE</category>
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