Edited by Murdoch Watney

The chapters in this volume focus on the future of law and related disciplines: human rights and access to medical care, corruption and money laundering in state procurement, counterfeit medical products, IPR waiver on COVID-19 vaccines, emergency powers, freedom of expression, prison healthcare, the impact on labour law, access to courts and digital court processes, access to education and the impact on insurance law are but a few possible topics which are addressed.

Johannesburg, UJ Press, 2022. 288p.

By Kees Sterk

For the identity and well-functioning of Europe, independent national judiciaries are key, and the selection processes of judges and Court Presidents essential. During the last decade, however, several European Governments have been undermining this by trying to establish political control over national judges, especially through political dominance over the selection and appointment processes for judges and Court Presidents.

In his inaugural speech, Sterk addresses the topic of selection processes, both on substance as well as on procedure. He analyses the case law of the European Court of Justice as well as the European Court of Human Rights, and the enforcement policies of the European Commission. 

Sterk identifies problems and recommends five steps to protect independent justice in Europe including the systemic enforcement gap, an effective enforcement duty, the standards for selection bodies, a duty to reason selection decisions, and on limiting the power of the executive to refuse candidates selected by selection bodies.

The Hague: Eleven International Publishing, 2023. 56p.

Edited by Francesca Galli, Anne Weyembergh

Criminal law has undergone tremendous changes in the past decades. A number of new trends have been challenging the traditional features of “modern criminal law” as founded by Cesare Beccaria in the 18th century and developed thereafter. Some authors describe a process of “disengagement” from the fundamental principles upon which “modern criminal law” is based. They point to its corollary, the rise of the ideology of pragmatism, which, in the name of efficiency, is gradually transforming the whole philosophy underpinning the criminal justice system. Some of them thus refer to the “post-modernisation” of criminal law . Among the new trends affecting criminal justice systems, one of them has attracted considerable academic attention in the last few years. This is the so-called “Europeanisation process”, which is the result of the growing intervention of the EU in the area of criminal law. Criminal law and criminal procedure are deeply rooted in national sovereignty and had therefore been developed at national level only. However, since the entry into force of the Amsterdam Treaty, the EU has taken a lead in the approximation of criminal legislation and has developed new and closer cooperation mechanisms based on principles such as the mutual recognition of decisions in criminal matters . With the entry into force of the Lisbon Treaty, the EU’s scope for intervention in this field has been considerably broadened and its supranational nature strengthened, thereby challenging the narrow and profound link between criminal law and the nation state even more. Another new trend which criminal law and other legal disciplines are facing is the increasingly blurred dividing lines between legal categories. Several authors have highlighted the existence of a general blur . Various dimensions of this blur have been identified in legal literature . As will be highlighted by other authors in this book , the verb and the noun “blur” have rather negative connotations. As a verb, it is defined as the action of making or becoming vague or less distinct, of making less clear, of smearing or smudging. As a noun, “blur” means vague, hazy or indistinct . Law and lawyers are not at ease when faced with vagueness and lack of clarity. This is especially true for criminal law and criminal lawyers, as is demonstrated by the well-known principle of legality in its substantive dimension. As will be underlined by some authors in the following contributions, these blurred dividing lines can, however, also have a positive impact or at least give rise to a multitude of consequences that cannot all be categorised as negative. This is clear, for instance, when one thinks of the application of criminal procedural guarantees by administrative law or of the so-called Engel line of case law of the European Court of Human Rights (ECtHR). A growing blur can be observed between criminal and administrative law. Both fields of law have received numerous different definitions . The dividing line between them has never been clear . Their respective scope and/or the criteria dividing their respective jurisdiction can vary depending on the country concerned and on the “approach” followed. The criminal nature of proceedings and of penalties can indeed be considered in a formal or substantial manner. As it is well known in its above-mentioned Engel ruling, the ECtHR follows the second approach when considering whether national proceedings constitute a criminal charge in the sense of Article 6 ECHR . The blur between criminal and administrative law has different manifestations and has a wide variety of origins. The scope of both administrative and criminal law tends to expand. Criminal law is being introduced in fields in which the legislator traditionally adopted administrative measures and vice versa. Fields such as terrorism or trafficking in human beings, which have traditionally been governed by criminal law, are increasingly sprinkled with administrative measures or are becoming fields where administrative actors are increasingly involved. In some domains, a double enforcement/sanctioning system (administrative/criminal) has developed. However, by themselves, these trends do not necessarily result in a blur. A blur occurs when the scope of intervention and the division of functions between both kinds of measures, systems, actors or frameworks are not clear enough; when the two sets of applicable rules become indistinct and/or when there is cross-contamination whereby the interactions between both types of measures, actors or frameworks is not organised and overlaps are neither avoided nor regulated. So, in order to identify a blur, the following questions are of key importance: Are there clear criteria setting out when one or the other actor/framework, or both, should be involved? Are the rules applicable to one or the other framework/actor clearly defined and is there some kind of approximation between them? Is a system of double administrative and penal repression foreseen? Reflecting on the reasons for the growing blur between administrative and criminal law is quite interesting. As will be highlighted in the different contributions to this book, various factors arise, including the advantages of each of the different regimes , the need to find an effective way of dealing with certain kinds of crime that are becoming ever more complex, the need to develop a multidisciplinary/holistic approach towards some crimes, particularly trafficking in human beings, and the will and/or need to prevent crime, especially terrorism, etc. The purpose of this book is to study the combination of both of the abovementioned trends affecting criminal justice systems. The blur between administrative and criminal law has, of course, been around for a while and exists independently of the European Union. It is, for instance, embodied in the blurred line between measures belonging to punitive administrative law and criminal law measures . Up until now, this trend has mainly been analysed at the national level. However, it is interesting to reflect on the interaction between the Europeanisation of criminal law on the one hand and the increasingly blurred line between administrative and criminal law on the other hand. In this regard, the main question that arises is whether and to what extent the EU contributes to the blurred line; if it tries to limit it, control it and/or organise it.

Bruxelles, Editions de l’Université de Bruxelles, 2014. 259p.

By Gabriel Petek

Individuals charged with a crime have a right to effective assistance of legal counsel under the U.S. and California Constitutions. This is to ensure they receive equal protection and due process under the law. The government is required to provide and pay for attorneys for those individuals who are unable to afford private attorneys. This is known as “indigent defense.” Importance of Effective Indigent Defense. In addition to being a constitutional right, effective indigent defense in criminal proceedings can help mitigate or eliminate major consequences that defendants face regardless of whether they are convicted, such as losing a job due to being held in jail until their case is resolved. Effective indigent defense can also help ensure that all individuals are treated equitably in criminal proceedings, particularly lower-income individuals and certain racial groups who are at greater risk of experiencing serious consequences from being involved in the criminal justice system. Counties Primarily Responsible for Indigent Defense. In California, counties are primarily responsible for providing and paying for indigent defense. However, recent litigation suggests that the state could be held responsible for ensuring that effective indigent defense is being lawyerprovided. Indigent defense is generally provided in a combination of three ways: (1) public defender offices operated by the government, (2) private law firms or attorneys that contract with the government to provide representation in a certain number of cases and/or over a certain amount of time, or (3) individual private attorneys who are appointed by the court to specific cases. The actual provision of indigent defense services, however, varies by county. State Lacks Information to Assess Indigent Defense Service Levels. The state currently lacks comprehensive and consistent data that directly measures the effectiveness or quality of indigent defense across the state. This makes it difficult for the Legislature to ensure effective indigent defense is being provided. Analysis of Limited Data Raises Questions About Effective Provision of Indigent Defense. In the absence of consistent statewide data and metrics more directly measuring the effectiveness or quality of indigent defense, we analyzed limited available data comparing funding, caseloads, and staffing of indigent defense providers with district attorneys who prosecute cases, allowing for a rough, indirect assessment of existing indigent defense service. The identified differences are notable enough that they raise questions about the effective provision of indigent defense in California. For example, in 2018-19, spending on district attorney offices was 82 percent higher than on indigent defense. Recommend Three Key Steps for Legislative Action. We recommend three key steps that the Legislature could take to ensure it has the necessary information to determine whether a problem exists with indigent defense service levels, what type of problem exists, and how to effectively address such a problem. Specifically, we recommend the Legislature: (1) statutorily define appropriate metrics to more directly measure the quality of indigent defense; (2) require counties collect and report data to the state’s Office of the State Public Defender; and (3) use the data to determine future legislative action, such as identifying whether resources are needed to ensure effective indigent defense as well as how such resources could be targeted to maximize their impact

Sacramento: Legislative Analyst's Office, 2022. 28p.

By Mugambi Jouet

The role of systemic racism in criminal justice is a growing matter of debate in modern Western democracies. The United States’ situation has garnered the most attention given the salience of its racial issues and the disproportionate attention that American society garners around the world. This has obscured major developments in Canadiansociety with great relevance to increasingly diverse Western democracies where minorities are highly over-incarcerated. In recent years, the landmark Anderson and Morris decisions recognized that the systemic racism that Black people face in Canada should be considered as mitigation at sentencing. These historic cases partly stem from the recognition of social-context evidence as mitigation for Indigenous defendants under a groundbreaking 1996 legislative reform that remains little known outside Canada’s borders. While Australia and New Zealand have also recognized certain mitigation principles for Indigenous defendants, Canada is arguably the country that is now making the most concerted effort to tackle systemic racism in criminal punishment.

Conversely, the U.S. Supreme Court rejected this approach in McCleskey v. Kemp, an influential 1987 precedent holding that statistical proof of systemic racism in sentencing is essentially irrelevant. The situation might someday change in America, as suggested by the Washington State Supreme Court’s 2018 abolition of the death penalty in State v. Gregory, which deviated from McCleskey in accepting evidence of systemic racism. However, Gregory was only decided under state law and it is too early to tell whether more American states will inch toward the developments occurring in Canada.

These ongoing shifts should be situated in a wider historical context, as they do not merely reflect modern debates about systemic racism or Canada-specific matters. This Article captures how they are the next step in the long-term, incremental evolution of criminal punishment in the Western world since the Enlightenment. For generations, the principles of individualization and proportionality have enabled judges to assess mitigation by considering a defendant’s social circumstances. Considering evidence of systemic racism or social inequality as mitigation at sentencing is a logical extension of these principles. The age-old aspiration toward humanity in criminal justice may prove a stepping stone toward tackling the over-incarceration of minorities in modern Western democracies.

New York University Review of Law & Social Change, forthcoming 2023. 60p.

By Human Rights Clinic at the University of Texas School of Law.

The Human Rights Clinic at the University of Texas School of Law, in cooperation with the Centro Diocesano para los Derechos Humanos Fray Juan de Larios from Coahuila, Mexico, has compiled a report based on analyzed witness testimonies from three U.S. federal trials. Between 2013 and 2016, Zeta members were put on trial in Austin, San Antonio, and Del Rio for crimes of homicide, conspiracy to import drugs and weapons, and money laundering. These trials brought new information to light and corroborated information that has already been documented about Zeta operations and human rights abuses. First-hand testimonies of ex-Zeta cartel members and victims provide a more comprehensive understanding of the dire situation in Coahuila and offer a glimpse into the Zeta structure, members, and nexus with state officials and institutions. After reviewing the witness testimonies, the Clinic has determined two major findings: (1) the Zeta cartel committed numerous human rights abuses in Coahuila with impunity; (2) public institutions and officials played a role, by actions or omissions, in the commission of these abuses. Testimonies describe the nature and degree of Zeta influence over state and municipal officials and institutions. The Zetas paid bribes and integrated police officers into their hierarchy to ensure the cartel would be able to continue their illicit operations without resistance. However, the Zetas did not only influence low level state or municipal police; witnesses described a level of Zeta control which extended to city police chiefs, state and federal prosecutors, state prisons, sectors of the federal police and the Mexican army, and state politicians. Multiple witnesses described bribery payments of millions of dollars to Humberto Moreira and Ruben Moreira, the former and current governors of Coahuila, in exchange for complete control of the state. According to the testimonies, the Zetas’ influence over Coahuila government operations at all levels allowed them to conduct their business throughout the state with impunity and often with direct assistance from state officials and police officers. The report also documents the human rights abuses discussed in the witness testimonies, including the large-scale disappearances and killings in March and April of 2011, during what is known as the Piedras Negras and Allende Massacres. These crimes were perpetrated in response to information that three former Zeta operatives had begun to cooperate with U.S. authorities. In retaliation, the Zetas kidnapped, killed, and disappeared over 300 people who they believed to be associated with the former Zeta operatives

Austin, TX: University of Texas, Human Rights Clinic, 2017. 56p

By Julia Gebhard.

Recourse to Human Rights in Substantive International Criminal Law. What are chances and challenges of referring to human rights law in defining crimes under international law? Under what circumstances is a reference to human rights law dogmatically appropriate and practically likely? The answers to these questions are explored through a look at the theoretical framework, practical application in jurisprudence as well as empirically through interviews with judges. By highlighting the common roots and the differences between both areas of law, the existing inconsistencies in the application of the law, as well as approaches which could contribute to their solution, the book presents a crucial contribution to the debate on legal certainty and innovation in international criminal law.

Baden-Baden, Germany Nomos Verlagsgesellschaft mbH & Co. KG, 2018. 296p.

Edited by J. Jrpa Dawuni.

Selected Studies. Women judges are playing increasingly prominent roles in many African judiciaries, yet there remains very little comparative research on the subject. Drawing on extensive cross-national data and theoretical and empirical analysis, this book provides a timely and broad-ranging assessment of gender and judging in African judiciaries. Employing different theoretical approaches, the book investigates how women have fared within domestic African judiciaries as both actors and litigants. It explores how women negotiate multiple hierarchies to access the judiciary, and how gender-related issues are handled in courts. The chapters in the book provide policy, theoretical and practical prescriptions to the challenges identified, and offer recommendations for the future directions of gender and judging in the post-COVID-19 era, including the role of technology, artificial intelligence, social media, and institutional transformations that can help promote women’s rights. Bringing together specific cases from Kenya, Uganda, Ghana, Nigeria, Zambia, Tanzania, and South Africa and regional bodies such as ECOWAS and the African Commission on Human and Peoples’ Rights, and covering a broad range of thematic reflections, this book will be of interest to scholars, students, and practitioners of African law, judicial politics, judicial training, and gender studies. It will also be useful to bilateral and multilateral donor institutions financing gender-sensitive judicial reform programs, particularly in Africa.

London; New York: Routledge, 2022. 346p.

Edited by Hans-W. Micklitz, Oreste Pollicino , Amnon Reichman, Andrea Simoncini , Giovanni Sartor, and Giovanni de Gregorio.

“ the rise of the bureaucratic state, the technologies for infringing liberty or equality were thought to be containable by the exercise of concrete judicial review… . In recent years, however, the rise of the algorithmic society has led to a paradigmatic change where the public power is no longer the only source of concern for the respect of fundamental rights and the protection of democracy, where jurisdictional boundaries are in flux, and where doctrines and procedures developed in the pre-cybernetic age do not necessarily capture rights violations in a relevant time frame.”

Cambridge University Press. (2021) 300 pages.

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By Marjorie Mayo, Gerald Koessl, Matthew Scott and Imogen Slater.

This book explores the dilemmas being faced by professionals and volunteers who are aiming to provide access to justice for all and to promote social justice agendas in increasingly challenging contexts. Public service modernisation has been accompanied by increasing marketisation and massive public expenditure cuts, with escalating effects in terms of the growth of social inequalities. As the following chapters illustrate, Law Centres have provided a lens through which to examine the implications of these wider policies, as increasing marketisation has been impacting upon staff and volunteers working to promote social justice in disadvantaged communities.

Policy Press (2014) 174p.