Jurimetrics

'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

The authors comment

Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?

The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?

Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.

The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.

This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.

To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.

In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.

In New Zealand The Wheels of Justice: Understanding the Pace of Civil High Court Case by Bridgette Toy-Cronin, Bridget Irvine, Kayla Stewart and Mark Henaghan comments 

Delays in the court process are a key obstacle in accessing justice. Delay creates costs; not only in the loss of time but also financial and psychological costs. These costs are borne by the litigants, the economy, and the public purse. This is the first major New Zealand study to investigate the pace of High Court civil cases and to examine if, and where, delays might occur. 

In this report, we look at both the overall length of cases, and we focus on various points in the life of a case where delay might occur. We have used mixed methods to study these issues: a quantitative analysis of data provided by the Ministry of Justice, an analysis of physical court files, and interviews with lawyers, judges, court staff, and litigants. 

Determining the overall length of a case is a more complex task than it appears on its face, particularly as there are limitations to the data recorded by the Ministry of Justice. Where possible, we have used our analysis of the physical court files to overcome these limitations and evaluate case length. On average, a case filed in the High Court will conclude within 191.5 days. General proceedings, one of the types of civil proceedings heard by the High Court, frequently exceeded the average case length, taking an average of 381 days to conclude. As general proceedings were the longest class of cases and account for 29 per cent of the High Court’s total caseload, the report focuses on this case type. Study participants agreed that most general proceedings should not exceed two years; only 18 per cent of general proceedings exceeded this limit. 

Analysing case length alone, however, cannot answer all questions about delay. Delay can occur in extremely short cases; conversely, for some very long cases the passage of time could not be conceived as delay. In fact, we précised several long cases that had no evidence of delay. These included cases that were ‘parked’ for various reasons: waiting for a related case to be resolved, an appeal to be heard, remedial work to be undertaken, or a settlement negotiated. Some cases just needed more time to be ready for trial, especially cases involving multiple parties, or with complex evidentiary issues. While lengthy, these cases were not necessarily delayed. 

Other cases – long and short – exhibited evidence of delay. Interviews with the participants helped to tease out the nature of this delay. The lack of judicial time to promptly hear fixtures (interlocutory and substantive) and deliver judgments was of particular concern. The unavailability of litigation participants, especially experts, also slows the pace of a case. Errors by registry were also evident; while rare, these errors can delay case progression. Finally, litigation involves a range of participants: litigants, lawyers, witnesses, court staff, and judges. The behaviours of any of these participants in the process can affect pace. For example, litigants, whether represented or unrepresented, can create delay for strategic reasons; lawyers preparing court documents late or to a poor standard can create delay. We canvas the interplay between these litigation participants and consider how these relationships can affect pace. 

When considering solutions to the causes of delay the fundamental purposes of the court must be kept to the fore: to secure just outcomes between parties, publicly state the law, reinforce norms, and limit executive power. The court is a complex organisation. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity. Proposed reforms should be carefully considered and approached cautiously. 

Before firm recommendations can be made, further analysis of this data is required. A number of possibilities, however, have emerged at this preliminary stage. Many of these reforms centre on the case management process, including: earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, and setting firm timetables. Another key area for further research is initiatives to lower or better plan the cost of legal representation, which has a close but complex relationship with the pace of litigation. Other possible reforms focus on the court’s broader operations, including: protecting judgment writing time, and maximising the advantages that can be harnessed from modern technology. There is an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed. Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function.

GI

'Geographical Indications and Environmental Protection' by Michael Blakeney in (2017) 12(2) Frontiers of Law In China 162 comments

The protection of Geographical Indications (hereinafter "GIs") is required by all members of the World Trade Organization (hereinafter "WTO"), as this is mandated by the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (hereinafter "TRIPS"). Among the primary justifications for the protection of GIs is to enable producers to secure the premium prices which are attracted by products which have a unique quality that is attributable to their place of production. As this article points out, one reason for this premium price, in the case of agricultural products is that traditionally produced goods are often free from contaminants, such as herbicides and pesticides. Not previously discussed in the literature is the fact that from an environmental protect perspective, GIs applied to agricultural products provides some consumer confidence in their purity, as well as in their traceability. In securing higher returns for agricultural producers, GIs play an important role in securing rural development and the maintenance of rural landscapes. Finally, the article points out that the international GIs regime provides an important means of protecting the traditional knowledge of agricutlural producers.

CCTV in EU teaching spaces

In Antovic and Mirkovic v Montenegro [2017] ECHR 1068 the European Court of Human Rights has held that CCTV in a public lecture theatre at the University of Montenegro breached Article 8 of the European Convention on Human Rights. CCTV networks are a feature of teaching spaces in many Australian universities.

Article 8 of the Convention protects the right to respect for private and family life. The Dean of the School of Mathematics installed video surveillance in a public lecture theatre at the university to "protect safety of property, people and students". It also recorded lectures. The data was protected by codes known only to the Dean and kept for one year. A decision articulated by the Dean specified that the introduction of CCTV was intended to ensure the safety of property and people, including students, and the surveillance of teaching.

In March 2011 academics Ms Nevenka Antović and Mr Jovan Mirkovic complained to the state Personal Data Protection Agency about the video surveillance and the collection of data on them without consent. They relied on Montenegro's Personal Data Protection Act. In particular, they argued that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased.

Antović and Mirkovic  challenged the assessment. The Montenegrin Personal Data Protection Agency ordered the removal of the cameras. There was no evidence safety was an issue and therefore no legitimate grounds for data collection. The Agency ordered the School of Mathematics to remove the cameras from the auditoriums within fifteen days, as the video surveillance was not in accordance with the Personal Data Protection Act. In particular, the reasons for the introduction of video surveillance provided for by s 36 of that Act had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. In January 2012 the cameras were removed.

Ms Antovic and Mr Mirkovic brought compensation claims against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them.

They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court.

Domestic courts held that Article 8 had not been violated. The Court of First Instance for example found that the notion of private life certainly included activities in the business and professional spheres. However, the university was a public institution performing activities of public interest (inc teaching), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. The lecture space was a working area, akin to  a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data.

The Court further held that monitoring of actions taking place in public (in accord with the Court’s case-law) >was not an interference with a person’s private life when those means just recorded what others could see if they happened to be in the same place at the same time. The monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. The Court  concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy and had therefore not caused them any mental anguish.

On appeal the European Court (by four votes to three) ruled that although the University is a public sphere, private life encompasses business and professional activities. Article 8 had been breached.

The compensation awarded was, from an Australian perspective, symbolic.

Antović and Mirkovic were awarded one thousand euros each in respect of non-pecuniary damage. They were awarded 1,669.50 euros jointly in respect of costs and expenses.

Plumbers and the French Disease

From Cynthia L. Haven's Evolution of Desire: A Life of René Girard (Michigan State University Press, 2018) -

The theatrics of Baltimore raise another important point, and one that’s emerged since. To put it bluntly: How much was pure sham, pure preening and ego jousting? At times, the mimetic rivalries and derivative desires seemed to be a showcase for the very principles Girard’s Deceit, Desire, and the Novel describes.

The American philosopher John Searle excoriated Derrida, insisting, 

You can hardly misread him, because he’s so obscure. Every time you say, “He says so and so,” he always says, “You misunderstood me.” But if you try to figure out the correct interpretation, then that’s not so easy. I once said this to Michel Foucault, who was more hostile to Derrida even than I am, and Foucault said that Derrida practiced the method of obscurantisme terroriste . . . And I said, “What the hell do you mean by that?” And he said, “He writes so obscurely you can’t tell what he’s saying, that’s the obscurantism part, and then when you criticize him, he can always say, ‘You didn’t understand me; you’re an idiot.’ That’s the terrorism part.”

Not everyone, of course, agrees with this reading—though many have criticized Derrida for his byzantine writing, with its italics, its phrases in phantom quotation marks, and its dizzying wordplay. Girard himself clearly felt respect, as well as dismay, for his colleague. Girard himself, although dismayed by the deconstructive frenzy Derrida wrought, clearly had respect for his colleague as well. In particular, he wrote and spoke admiringly of Derrida’s early essay, “Plato’s Pharmacy,” which anticipated his own insights in some respects.

To some extent, Searle’s criticism reflects the porous divide between analytic and continental philosophy, and the former still dominates the American intellectual landscape and our public discourse. Speaking very roughly, analytic philosophy focuses on analysis—of thought, language, logic, knowledge, mind; continental philosophy focuses on synthesis—synthesis of modernity with history, individuals with society, and speculation with application. Anglo-American philosophy has emphasized the former; mainland Europe the latter. Searle is aligned with the analytic camp; so is linguist and philosopher Noam Chomsky, one of America’s leading public intellectuals.

Chomsky called Lacan a “total charlatan” posturing for the television cameras, charging that “there’s no theory in any of this stuff, not in the sense of theory that anyone is familiar with in the sciences or any other serious field. Try to find in all of the work you mentioned some principles from which you can deduce conclusions, empirically testable propositions where it all goes beyond the level of something you can explain in five minutes to a twelve-year-old. See if you can find that when the fancy words are decoded. I can’t,” he said.

Searle’s and Chomsky’s critique is part of the American opposition that began in the 1980s, continuing the philosophical school of “American pragmatism” that looks for ideas to deliver some intellectual payoff. American pragmatists have been called “the plumbers of philosophy”—they attempt to solve problems, not provide elegant and clever descriptions of problems.

Perhaps questions should be practical, too. Sometimes a single naive question can bring down an entire edifice of thought. Let me extend a few naive questions, then, in that spirit: How is a philosophy embodied in the man who espouses it? What is a philosophy that does not change a man—not only what he says, but how he lives? How does a man’s being—the sum of his knowledge, experience, and will—“prove” his knowledge? Can we ever devise a philosophy, even a theory, wholly apart from who we are, and what we must justify? These questions were raised in earnest when Heidegger’s affiliation with the Nazis, and later Paul de Man’s complicity with them, were revealed. What does the test of time show us about the merits of an idea? However heated the arguments in the Parisian coffee shops, in the end, decades later, they would become systems of thought characterized by wordplay, mind games, and a noncombatant’s flexibility, charm, and elasticity—all delivered with an ironic wink.

Finance Sector Royal Commission

Draft Terms of Reference for the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, headed by former HCA justice Kenneth Hayne, are -

Context 

Australia has one of the strongest and most stable banking, superannuation and financial services industries in the world, performing a critical role in underpinning the Australian economy. Our banking system is systemically strong with internationally recognised, world’s best prudential regulation and oversight. 

Most Australians are consumers of banking, superannuation and other financial services. The superannuation system alone in Australia has created more than a $2 trillion retirement savings pool, which continues to grow rapidly, and which compels all working Australians to defer income today for their retirement. 

All Australians have the right to be treated honestly and fairly in their dealings with banking, superannuation and financial services providers. The highest standards of conduct are critical to the good governance and corporate culture of those providers. 

These standards should continue to be complemented by strong regulatory and supervisory frameworks that ensure that all Australian consumers and businesses have confidence and trust in the financial system. 

The Government will appoint a distinguished serving or former judicial officer to lead a Royal Commission into the banking, superannuation and financial services industries. 

The Commission’s inquiry will not defer, delay or limit, in any way, any proposed and announced policy, legislation or regulation of the Government. 

Terms of Reference 

1. The Commission must inquire into the following matters;

a) the nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf); 

b) any conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations; 

c) the use by a financial services entity of superannuation members’ retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members; 

d) whether any findings in respect of paragraphs 1(a), (b) and (c): i. are attributable to the particular culture and governance practices of a financial services entity or broader cultural or governance practices in the industry or relevant subsector; and ii. result from other practices, including risk management, recruitment and remuneration practices; 

e) the effectiveness of mechanisms for redress for consumers of financial services who suffer detriment as a result of misconduct by a financial service entity; 

f) the adequacy of: i. existing laws and policies of the Commonwealth (taking into account law reforms announced by the Government) relating to the provision of financial services; ii. the internal systems of financial services entities; and iii. forms of industry self-regulation, including industry codes of conduct; to identify, regulate and address misconduct in the industry, to meet community standards and expectations and to provide appropriate redress to consumers and businesses; 

g) the effectiveness and ability of regulators of a financial services entity to identify and address misconduct by those entities; 

h) whether any further changes to: i. the legal framework; ii. practices within financial services entities; and ii. the financial regulators, are necessary to minimise the likelihood of misconduct by financial services entities in future (taking into account any law reforms announced by the Government); and 

i). any matter reasonably incidental to a matter mentioned in the above paragraphs, 1(a) – 1(h). 

2. In conducting its inquiry the Commission should give priority to matters which in its opinion, have greater potential for harm if not addressed expeditiously. 

3. Inquiring into the matters set out in paragraph (1)(f), the Commission:

a) must have regard to the implications of any changes to laws, that the Commission proposes to recommend, for the economy generally, for access to and the cost of financial services for consumers, for competition in the financial sector, and for financial system stability; and 

b) may have regard to comparable international experience, practices and reforms. 

4. However, the Commission is not required to inquire, or to continue to inquire, into a particular matter to the extent that to do so might prejudice, compromise or duplicate: 

a) another inquiry or investigation; or 

b) a criminal or civil proceeding. 

And, the Commission may choose not to inquire into certain matters otherwise within the scope of this Inquiry, but any such decision will be the Commission’s, alone. 

5. The Commission is not required to inquire into, and may not make recommendations in relation to macro-prudential policy, regulation or oversight. 

6. The Commission may submit to the Government an interim report no later than September 2018 and must submit a final report within 12 months. The final report is to contain: a) its findings; and b) any recommendations relevant to the inquiry that the Commission thinks fit. 

Definitions 

financial service entity means an entity (other than a Commonwealth entity or company) that is:

a) an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959; 

b) an entity that carries on the business of undertaking liability, by way of insurance (including reinsurance), in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event, including: i. a general insurer within the meaning of the Insurance Act 1973; and ii. an entity undertaking life insurance business within the meaning of the Life Insurance Act 1995. 

c) a person or entity required by section 911A of the Corporations Act 2001 to hold an Australian financial services licence or who is exempt from the requirement to hold a licence by virtue of being an authorised representative; or 

d) an RSE licensee of a registrable superannuation entity (as that term is defined in the Superannuation Industry (Supervision) Act 1993) and any entity that has any connection (other than an incidental connection) to the RSE licensee of a registrable superannuation entity. 

Macro-prudential policy and regulation means policy and regulation, including as to the structure, role and purpose of financial regulators, that is concerned with containing systemic risk, which can have widespread implications for the financial system as a whole, beyond simply the banking system. 

misconduct includes conduct that 

a) constitutes an offence against a Commonwealth, State or Territory law in relation to the provision of a financial service, as existed at the time of the alleged misconduct; or 

b) is misleading and/or deceptive; or 

c) indicates a breach of trust or duty or unconscionable conduct; or 

d) breaches a professional standard or a recognised and widely adopted (conduct) benchmark.

States and Secret Treaties

'The Survival of the Secret Treaty: Publicity, Secrecy and Legality in the International Order' (University of Cambridge Faculty of Law Research Paper No. 56/2017) by Megan Donaldson comments

This article offers the first detailed history of the norm of treaty publication as it has evolved over the last century. Drawing on both public debates and archives of foreign ministries, it traces how, and why, secret treaties have persisted, even in liberal democracies. It challenges assumptions of ever-greater transparency over time, and complicates the associations made — by interwar reformers and international lawyers today — between the norm of treaty publication and ideals of legality in the international order.

Clark states

Concern about “secret diplomacy” in the wake of World War I found its clearest expression in opposition to “secret treaties.” Left-leaning and internationalist groups believed that “publicity” of treaties1 would advance the control of foreign policy by legislatures and citizens, and help construct a more peaceful international order, governed by law rather than power politics. Article 18 of the Covenant of the League of Nations gave expression to these ideals, by purporting to render the binding force of treaties entered into by any member of the League conditional on their registration by the League Secretariat. Registration in turn entailed publication to the world at large.  Article 18 was thus the first instantiation of a norm of treaty publication in international law (with “treaty” here understood in the general international law sense). Admittedly, this norm was a relatively narrow one. It guaranteed only the publication of treaties once made, and did not address the secrecy of the negotiation phase. Nevertheless, it was a major change to law and diplomatic practice. Aspects of Article 18 were carried over into Article 102 of the UN Charter, which in turn was echoed in the Vienna Convention on the Law of Treaties (VCLT). 

This article offers the first detailed history of the norm of treaty publication. It traces the emergence of the norm, and struggles over its interpretation and application, through the practice of the United States, Britain, and France. While these three states are not representative of the international community as a whole (neither in the interwar period nor today), their commitment to greater publicity, and influence over modes of diplomacy, makes them a revealing lens on the norm and its limits. The article draws on public debates in legislatures, international organizations, and legal scholarship, but also discussions within foreign ministries and the League of Nations Secretariat. Analysis from these diverse sources offers a clearer picture of the true legal architecture of publicity and secrecy in treaty practice. It suggests how, and why, margins for secrecy have persisted, even in liberal democracies, and draws out for critical scrutiny the relationship between the norm of treaty publication and legality in the international order.  

The article challenges the liberal democratic trajectory some might expect, namely ever- greater publicity over time. It shows that, while statesmen and officials made real efforts to uphold the publication norm, they also fought to preserve some avenue for making commitments that were both legally binding and secret. In international law, the radical potential of Article 18 of the Covenant—the connection it forged between registration and publication, on one hand, and binding force, on the other—was undone in the early years of the League. Article 102 of the Charter is less ambitious than its predecessor. Domestic law requirements, which arguably play as great a role in driving publication as international requirements, have also left avenues for secrecy, although these have been narrowed and systematized. 

Within liberal democracies, the article shows that general attitudes to the norm of publication were driven not only by factors like perceived geopolitical vulnerability, but also national political and legal cultures, and even the bureaucratic organization of the treaty apparatus. Specific efforts to carve out exceptions to the norm of publication, or decisions to flout it, were motivated by diverse considerations: perceived needs to preserve some concrete advantage over military or commercial rivals, to stabilize markets or currencies, and to prevent political opposition from national populations, colonies, or allies; but also to conceal markers of inferiority or subordination in interstate relations, and thus shore up a symbolic economy of interstate equality. For bodies charged with upholding the norm, like the League Secretariat, maintaining the force of Article 18 was important for credibility with internationalist constituencies, but there were countervailing incentives to interpret the provision narrowly in order to avoid confronting—and being seen to be defeated by—powerful member states. 

Many motivations for secrecy on the part of governments and institutions were self- interested and instrumental. However, officials and reformists also thought about secrecy in principled terms. On occasion, they reconsidered the normative case against secrecy that had been seen as persuasive in 1919. Some came to doubt whether secrecy was always inimical, for example, to peaceful ordering. In some instances, it seemed vital to preserve peaceful relations.

The doubts of contemporaries suggest enduring questions about whether and how the norm of treaty publication favors ends like democracy, peace, and legality. This article probes, in particular, the relationship between publicity and legality in the international order. In doing so, it gives a sense of the complex empirical terrain in which questions about democracy and peace, too, would have to be pursued. Actors concerned with publicity articulated different dimensions of the relationship between publicity and legality. Simplified for the sake of analysis, much of the discussion about publicity posited, first, a basic conceptual or normative connection to legality. This could take the form of assertions that legal relations and obligations were inherently public, or that they ought to be public. Second, there was an expectation that the norm of treaty publication would strengthen the role of law in the international order more generally (for example, by improving the dissemination and coherence of the law itself, fostering a commitment on the part of governments to following the law, or levelling out power imbalances between states and vindicating sovereign equality). This combined a general normative sensibility with a number of very condensed assumptions about the effects of publication or secrecy in particular contexts. Finally, there was confidence in law as a means of entrenching the norm of publication. This article shows that each of these stylized dimensions of the relationship between publicity and legality proved more complex—empirically and conceptually—than it had seemed in 1919.

The article intersects with doctrinal scholarship on the law of treaties and emergent research on why states craft interstate commitments in particular ways. However, doctrinal scholarship—cited very sparingly here—often concentrates on problems of classification, like the definition of a treaty6 and distinctions between legally binding “treaties” and “gentlemen’s” or “non-binding” agreements;  or on questions which flow from classification of texts, like the role of ancillary texts in interpretation.  By contrast, emergent research on why states make agreements in the form they do largely brackets these questions. This article puts the law at the heart of the inquiry. Unlike doctrinal scholarship, though, it is not aimed at reaching its own classification of the texts considered. Rather, it probes what interlocutors understood themselves to be doing in drafting or handling texts in particular ways.

Attention to these features of treaty practice, often side-lined in doctrinal accounts, gives a much richer picture of the true architecture of publicity and secrecy. It reveals the possibilities created by the interplay of the law of treaties with diplomatic crafts of drafting, and the management of texts within foreign ministry bureaucracies. It suggests a more expansive canvas for states crafting their commitments than can be captured in many studies of state behavior. Governments are not only choosing between treaties and non-binding agreements, for example, but crafting complexes of different texts, making choices about presentation and emphasis which are difficult to capture in quantitative ways. Officials are sometimes uncertain about the status of particular texts, in disagreement with each other, or consciously shaping textual forms to preserve ambiguity about legal status. Finally, close attention to the crafting of texts and the negotiation of the bounds of the category of treaty brings to the fore some paradoxical aspects of secrecy in the international legal order. Secret treaties, by their nature, will never enjoy many avenues for rhetorical or institutional enforcement typically associated with legally binding commitments. They might even thus reflect a faith in legal obligation alone to shape state behavior. Conversely, however, some secret treaties purport to commit states to actions which may violate international law, calling broader commitments to legality into question. 

The article begins with a brief overview of the pre-World War I (WWI) landscape (Part I). It then traces the emergence of Article 18, and the tacit qualification of this provision in the early years of the League’s existence (Part II), before addressing interwar confrontations with a comprehensive publication norm in national public law and practice (Part III). While interwar developments are considered in detail, as they shaped approaches taken after World War II (WWII), the treatment of national practice is necessarily selective, focusing on examples which illustrate the range of areas in which secrecy was sought, the repertoire of techniques used, and particular turning points in national approaches. The article then considers the transformation of the treaty publication norm after WWII, a period for which the archival material becomes scarcer (Part IV). It sketches the evolution of techniques of secrecy, and changing legal approaches to its management, from WWII to the present (Part V), before offering a snapshot of the secret treaty today (Part VI). Finally, it summarizes developments over the last century, and what they reveal about the empirical landscape in which to consider the relationship of publicity to democracy, peace and legality in future (Part VII).

'The Future of State Sovereignty' (King's College London Law School Research Paper No. 2017-42) by Joseph Raz comments

Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will breed, and to the advantages of relatively sovereign political societies. The paper identifies the advantages of the legalisation of international relations, and the growth of international bodies. The dilemma of internationalisation is that its advantages can be obtained only if international organs acquire some of the characteristics of successful sovereign political societies, in attracting the loyalty and shaping the sense of identity of their members – a faraway prospect. The best we can hope for is a mix international regime of relatively sovereign states subject to extensive regulation by international organisations and laws. That requires a pluralistic jurisprudence of international organisations, allowing for great local diversity, of which we have so far seen only small beginnings.

Language and Afterlives

'The Construction of Homosexuality in New Zealand Judicial Writing' by Edward Clark in (2006) 37 Victoria University of Wellington Law Review 199 comments

This article examines the language used by New Zealand judges to describe homosexuality. It analyses the use of such language in judgments delivered after the decriminalisation of homosexual intercourse in 1986, examining the effect that judicial language has on rights claims made by homosexuals. 

The article argues that a significant number of judges are careless or ill-­informed in the language they use to refer to homosexuality and that the language used reinforces and repeats a number of negative stereotypes about homosexuality, constructing it as inferior to a heterosexual norm. This article criticises such careless or prejudiced language as incompatible with New Zealand’s human rights commitments and argues that this language constitutes a barrier to the full enjoyment of citizenship by homosexual New Zealanders.

The report by the ACT Legislative Assembly's Standing Committee on Environment and Transport and City Services regarding its inquiry into the management of ACT cemeteries. features the following recommendations

1 The Committee recommends the Government, in view of the diversification in burial and interment preferences in the ACT, ensure that the development and construction of a second crematorium in Canberra be considered a high priority. 

2 The Committee recommends the Government continue to monitor community preferences across a range of burial, cremation and interment practices and where possible make provision for emerging or alternative practices. 

3  The Committee recommends the management and operation of ACT cemeteries continue to be performed by the ACT Cemeteries Authority. 

4 The Committee recommends the management and operation of any future cemeteries or crematorium or any other interment facility be performed by the ACT Cemeteries Authority. 

5  The Committee recommends the Government reconsiders the planned extension of the Woden Cemetery in light of changes in planning for the Woden Town Centre and the views held by the local community. 

6 The Committee recommends that the Government agree to proceed with the current plans for the Southern Memorial Park and work with the ACT Cemeteries Authority to establish the facility as a matter of urgent priority. 

7  The Committee recommends that a review of the Cemeteries and Crematoria Act 2003 be undertaken to ascertain the feasibility and financial basis for adopting a renewable tenure scheme to replace the prevailing tenure provisions applying to ACT cemeteries. 

8  The Committee recommends that any review conducted in accordance with Recommendation 7 should seek to clarify the current definition of perpetuity, and examine the introduction of a renewable tenure regime with some form of increments and renewals allowed. 

9  The Committee recommends that any review conducted in accordance with Recommendation 7 should also include “for perpetuity” as a tenure option. 

10  The Committee recommends that any changes to tenure practices arising from the review conducted in accordance with Recommendation 7 are applied only to future burial sales and are not applied retrospectively to existing plot sites. 

11  The Committee recommends that an actuarial analysis of tenure options be undertaken as part of the review recommended in recommendation 7 to assess how best a renewable tenure scheme regime be structured to enable the ACT Cemeteries Authority to meet its financial liabilities over the long-term. 

12  The Committee recommends that where a recommendation made in this Report is adopted, that all aspects of the Cemeteries and Crematoria Act 2003 relating to that matter be given specific review in light of the Cemeteries and Crematoria Act 2003 enabling the Authority to implement the relevant reform.