High Tribunal Research Articles

The Legality of Ranked-Choice Voting

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that create incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). RCV allows voters to rank candidates in order of preference: first, second, third, and so on. To determine the winner, the candidate with the fewest “first choices” is eliminated and those ballots are then counted for the voter’s second-choice candidate. This process continues until a candidate either has a majority of the votes or until only two candidates remain. Voters in Maine and Alaska have endorsed RCV for federal and state elections in recent years, and RCV continues to gain traction in a variety of large cities throughout the country, including New York, Minneapolis, San Francisco, and Oakland. Some reformers have also proposed that states move to RCV in presidential elections, as Maine recently did. Yet RCV now faces an existential legal threat. In 2017, the Maine Supreme Judicial Court, the State’s highest tribunal, advised that RCV violates the state constitution. Were that interpretation correct, it would imperil RCV nationwide. Nearly 40 state constitutions include provisions similar to that in Maine’s constitution. These provisions declare that candidates are to be elected to office if they receive “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes. Maine’s highest court concluded that RCV’s multi-round tabulation process violates this type of provision. Even in states without such a constitutional provision, state statutes often include the same requirement. In short, if the Maine decision is correct and adopted more broadly, it could prevent state and local governments throughout the country from adopting RCV. This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions. After doing so, this Article concludes that RCV does not violate these provisions. The history of these provisions reveals that many states initially required winning candidates to receive a “majority of the votes” and that plurality provisions eventually came to replace these majority thresholds. The purpose of these plurality-vote provisions was to ensure that a winner could be identified through a single popular election, rather than requiring multiple separate elections to determine a winner or leaving the choice to the legislature. RCV offers precisely that: voters cast a single ballot in a single election and the candidate with the most votes, once the counting is complete, wins the election. Instead of plurality-vote provisions, a “majority of votes” is required to win in two state constitutions, some state statutes, and certain proposed reforms to the voting rules for presidential elections. These provisions pose a different challenge for RCV: whether the winner in an RCV election has received a “majority” of the relevant votes. The winner in RCV receives a majority in the final round of tabulation, but that might not be a majority of all the ballots (some voters might not have ranked either of the two candidates left in the final round of tabulation). This Article concludes that RCV is also best interpreted as consistent with most of these “majority-vote” provisions. Thus, if Americans choose to adopt RCV for presidential, national, state, or local elections, these plurality- and majority-provisions in state constitutions and state law should pose no legal obstacle to properly drafted RCV legislation.

Marszałkowie świeccy Trybunału Głównego Wielkiego Księstwa Litewskiego w latach 1633-1648

The proceedings of the High Tribunal of the Grand Duchy of Lithuania were presided over by a Marshal, also known as director of the Tribunal in the 17th century. He was elected from among all the deputies on the inauguration day of a new tribunal. The position was commonly fi lled by Lithuanian offi cials of various ranks and it was not uncommon for senators to serve as Marshals. For various reasons, a Marshal was not always able to take part in all the activities of the Tribunal – on such occasions assistant Marshals were elected. In 1633, 1634, 1635, 1636, 1638, 1639, 1642, 1646 and 1648, the High Tribunal was presided over by at least three directors. The most High Tribunals Marshals presided over (there were as many as fi ve) were in 1638 and 1642. In total, in 16 Lithuanian High Tribunals, which convened during the reign of Władysław IV, the position was fi lled by 37 persons, 45 times in all. Because of the political and property interests of Lithuanian political elites and opportunities to infl uence judgments, the position of the High Tribunal director was attractive. Out of 37 High Tribunal Marshals 17, or 46 per cent, were senators or were to become senators later. In terms of denominational affi liation, the High Tribunal was presided over by 33 Catholics, 3 Calvinists and a single Orthodox. High Tribunal Marshals were – in principle – elected deputies at the dietines of Lithuanian ‘upper voivodeships’, chiefl y though from the Vilnius Voivodeship. Out of 45 High Tribunal Marshals, 20 came from these dietines, which accounts for 44 per cent of all Tribunal directors in 1633-1648.

The Iraq Independent Investigative Team & Prospects for Justice for the Yazidi Genocide

This paper explores the the origins, reach and prospects of the Independent Iraqi Investigative Team (IIIT), created by the UN Security Council in 2017 to investigate the crimes of the Islamic State in Iraq. Although mandated to investigate all atrocity crimes, the commission of what many experts consider to be a genocide against the Yazidi people emerged as one of the central motivations for the IIIT’s formation. This paper explores the potential of the IIIT to achieve a measure of justice for the Yazidi people. Although the Yezidi people are not monolithic when it comes to their preferences for justice, glaring limitations in the Iraqi legal framework (particularly with respect to international crimes and crimes of sexual violence), may not produce results that are acceptable to Yazidi victims’ groups. This outcome, however, is not inevitable if local authorities are amenable to proposals for legal reform that the IIIT experts will inevitably propose as part of their capacity-building mandate. Moreover, the IIIT is ultimately only an investigative body; it has no prosecutorial powers or formal ability to influence the imposition of charges or criminal justice process writ large. As a result, it will be obliged to work with local, regional, and national authorities to ensure that potential evidence is fully exploited and that appropriate charges are brought. Although there may be a temptation among victims’ groups for swift justice resulting in the ultimate penalty, the IIIT should also protect against local prosecutions going the way of the Iraqi High Tribunal, which were perceived as deeply flawed and never earned the respect of the international community. Much of the IIIT’s efficacy will thus depend on who ends up staffing it, with many urging the appointment of individuals with solid experience investigating and prosecuting international criminal law violations (as opposed to career diplomats or human rights advocates) who also possess the diplomatic acumen to navigate the region’s roiling political waters and the sensitivity to work with the most vulnerable of victims.

Threats to bioethical principles in medical practice in Brazil: new medical ethics code period.

We aimed to outline the profile of medical professionals in Brazil who have violated the deontological norms set forth in the ethics code of the profession, and whose cases were judged by the higher tribunal for medical ethics between 2010 and 2016. This survey was conducted using a database formed from professional ethics cases extracted from the plenary of the medical ethics tribunal of the Federal Council of Medicine. These were disciplinary ethics cases that were judged at appeal level between 2010 and 2016. Most of these professionals were male (88.5%) and their mean age was 59.9 years (SD=11.62) on the date of judgment of their appeals, ranging from 28 to 95 years. Most of them were based in the southeastern region of Brazil (50.89%). Articles 1 and 18 of the medical ethics code were the rules most frequently violated. The sentence given most often was the cancellation of their professional license (37.6%) and the acts most often sentenced involved malpractice, imprudence, and negligence (18.49%). It is acknowledged that concern for the principles of bioethics was present in the appeal decisions made by the plenary of the medical ethics tribunal of the Federal Council of Medicine.

Doble conforme: La Garantía del imputado

In the field of procedural law, the doble conforme (second hearing) principle refers to the right of a criminally convicted party, i.e. a person declared guilty, to appeal the ruling or sentence given in a higher tribunal. The re-emergence of the victim in criminal procedure has led to changes in criminal Law, criminal proce­dural Law and even penal enforcement. Thus, it is debated whether the satisfaction of the right to justice of the offended party requires as a condition sine qua non the bilateral application of this procedural safeguard. With this purpose, this paper reviews and analyses the basic ideas or pillars that sustain the participation of the victim in the process, as well as the most common criticism related to them, since they attempt to reflect the negative impact they cause on the author. Finally, the problems related to the bilateral application of the doble conforme safeguard are highlighted, while encouraging the reader to reflect on the convenience of this type of regulation in a State of law that is respectful of the safeguards and principles of the accused.

Introduction

Introduction Melvin I. Urofsky The issue in your hands includes articles on many facets of the Supreme Court’s history, which, of course, has been our objective for many years. We hope that our readers will find time to put their feet up and enjoy learning more about our nation’s highest tribunal. When the Court recently handed down its decision in the same-sex marriage case, a number ofcommentators referred to Brown v. Board ofEducation (1954) to make a very important point. While the first case in a new field ofjurisprudence gets the headlines and the attention, the real work of implementing that decision will require years and other cases to determinejust how far the new ruling will go. Brown said that state-required racial segregation in public schools violated the Fourteenth Amendment’s Equal Protection Clause. But what about racial discrimination in places other than schools? Professor Steven P. Brown, the head of the political science department at Auburn, looks at one of these cases and its long history. Steven Girard, a wealthy nineteenthcentury Philadelphia merchant, left the bulk of his estate to found a school for white orphans. Although the gift was private, there were enough connections to the city to warrant a case for state action. Professor Brown traces the history of the bequest, and the fight that took place over integrating Girard College in the 1960s. It is a fine example of the devil being in the details. Evan P. Rothera is a graduate student in history at Pennsylvania State University, and his article on polygamy is the winner of this year’s Hughes-Gossett Student Prize. Most of us who teach constitutional history focus almost entirely on Reynolds v. United Statesem (1879) when we discuss the Court and polygamy. But as Rothera and others are showing, there is far more to the battle against polygamy than that one case, and it involved not only the high court but Congress and the Republican Party as well. It has been my good fortune to have Clare Cushman as the managing editor of the Journal ever since I took over. But Clare is not only a good editor, she is also the author of a number of books about the Court and its members. In 2011 she published 5 6 JOURNAL OF SUPREME COURT HISTORY Courtwatchers: Eyewitness Accounts in Supreme Court History, which has a wealth of little known anecdotes about the high court. The response was so enthusiastic that she is now co-publishing a volume (with Todd Peppers), Of Courtiers & Kings; More Stories by Law Clerks and Their Justices, from which the article on pre-1940 law clerks is adapted. The Framers of the Constitution gave federal judges tenure during good behavior, in other words, a lifetime appointment so they would be free from partisan political pres­ sures. The vast majority of the members of Justices have stayed until they retired or died, but a handful have left the Court to do something else. James F. Flanagan, emeritus professor of law at the University of South Carolina, looks at five of these Justices and helps us to understand why they did some­ thing so rare—resign from the U.S. Supreme Court. Abe Fortas was one of the most success­ ful lawyers in Washington, the head of a politically connected law firm, and the epitome of the old saw about New Deal lawyers who came to Washington to do good and stayed on to do well. He was a friend of Lyndon B. Johnson, who very much wanted him on the Court, a position that neither Fortas nor his wife wanted, but LBJ could not be stopped. Then, when Earl Warren wanted to retire as ChiefJustice, Johnson nominated his friend to take the center chair. Normally that would be the end of the story, but in fact it is just the beginning, as Robert David Johnson of Brooklyn College shows us. It is a tale with not one but many morals. Finally, we have a piece from my book on dissent and the Court. In that volume I try to show that a dissent is more than merely saying “I disagree.” A great dissent forces the...

REINTERPRETING THE REINTERPRETATION OF THE REINTERPRETATION OF FAIRCHILD

FAIRCHILD v Glenhaven Funeral Services Ltd. [2002] UKHL 22; [2003] 1 A.C. 32 was a hard case that made bad law. Now, for the fourth time, an appeal has gone to the highest tribunal, to unravel Fairchild's resulting complications. International Energy Group Ltd. v Zurich Insurance plc. [2015] UKSC 33; [2015] 2 W.L.R. 1471 (“Zurich”) represents “yet another demanding chapter in [that] difficult series of decisions”: at [189], per Lord Neuberger and Lord Reed. Zurich's resolution took seven judges, in four reasoned judgments, 211 paragraphs, or 80 pages of the law reports – some 46,000 words.

Acknowledging the Suffering Caused by State-Mandated Sexual Violence and Crimes: An Assessment of the Iraqi High Tribunal

The Iraqi High Tribunal (IHT), as a mechanism of transitional justice, took upon it a pioneering role within the Middle Eastern Region by prosecuting and convicting several high-ranking members of the former suppressive regime in Iraq. As part of this work, the IHT confronted the widespread impunity for and disregard of gender-based crimes, such as rape and other sexual violence, and took steps towards reforming the sector through its progressive statute and the specific acknowledgment of gender crimes within its judgments. It will be the aim of the following article to extend academic writings on Iraq, the IHT and gender, by providing insights into how the tribunal dealt with the issues of rape and sexual violence, the surrounding circumstances and how successful the IHT's recognition of these crimes proved for transitional justice in Iraq.

Lietuvos vyriausiasis tribunolas XX amžiuje

The article describes the history of practice and organization of the High Tribunal, the highest judiciary unit, called according to the tradition of Middle Ages grand principality of Lithuania. It was found in December, 1918 and functioned under this name till the Soviet occupation. In the beginning, the organization and functioning of the Tribunal was arranged under the so-called Temporary Act of Judiciary Practice and Organization of 1918, which later on was substituted by the new Judiciary Act of 1933. The latter act divided the history of the institution mentioned above into two periods. The former act described the High Tribunal as an appeal instance for the cases tried in the courts of the middle unit (district courts). The later appendices of this act also delegated the limited cassation towards some cases tried by general competence courts and military courts. However, since a great amount of cases did not reach the Tribunal, the possibilities of law interpretation function were not fully benefited. According to the second Judiciary Act, the High Tribunal was released from theappeal function, which was referred to the newly established judiciary unit, therefore, the High Tribunal turned into the court of appeal for the cases tried by the general competence courts, military competence courts and the courts of Klaipeda region. There were developed and regulated the possibilities of law interpretation and application equalization as well as setting the distribution of cases and some functions of administrative court. It remained the trial of cases brought against the President of the Republic and the members of government for high treason and malfeasance as the first instance. The article describes the structure, practice organization and statistical data on practice load analyzing the complaints against the decisions of the lower courts as well as the practice on law interpretation of the Tribunal, which was regarded as one of the most important functions of the Tribunal.

No Bed of Roses: William Johnson, Thomas Jefferson and the Supreme Court, 1822–23

No Bed of Roses: William Johnson, Thomas Jefferson and the Supreme Court, 1822-23 MARK R. KILLENBECK On December 10, 1822, Justice William Johnson sent a remarkable letter to the indi­ vidual who placed him on the Supreme Court, Thomas Jefferson. Over the course oftwentyone pages, Johnson laid bare his soul, dis­ cussing at length his trials and triumphs on the Court and numerous important, often deeply personal issues ofthe day. Itis an extraordinary document, both for what it reveals about its au­ thor and for the part it played in an extended exchange between Johnson and Jefferson in a series of letters sent and received between October 27, 1822 and August 11, 1823. William Johnson has been styled as the “First Dissenter.”1 The label fits the man. But Johnson was more than simply a habitual, al­ beit appealing, contrarian.2 He served on the Court from May 7,1804 until his death on Au­ gust 4,1834, a thirty-year period that included virtually all ofthe key years, and decisions, of the Marshall Court. Johnson was the first of the three individuals Jefferson placed on the Court.3 He was also arguably the most impor­ tant of them, the one Jefferson hoped would begin a process of changing the Court, from a “subtle corps of sappers and miners con­ stantly working under ground to undermine the foundations of our federated fabric,”4 to one composed of “Republican[s]... of suffi­ cient talents to be useful.”5 That did not happen. Johnson would, by and large, align himselfwith John Marshall in a series of decisions that infuriated the man Marshall subsequently derided as “the great Lama of the mountains.”6 Indeed, as I have argued elsewhere,7 perhaps the most strik­ ing thing about Johnson’s tenure is not what he wrote, either for the Court or in dissent, but what he did not say as the Court issued a series of opinions Jefferson claimed made “the constitution ... a mere thing of wax in the hands of the judiciary, which they may twist, and shape in any form they please.”8 Those opinions, and the manner in which they were delivered, played a significant role in the tenor and content of the exchanges between 96 JOURNAL OF SUPREME COURT HISTORY Jefferson and Johnson, within which the Sage of Monticello waged one last battle for the heart and mind of a man he had never actu­ ally met when he elevated him to the nation’s highest tribunal. The December 10th letter has gained a certain degree ofnotoriety. Numerous authors have quotedJohnson’s declaration thathis time on the Court “has not been a ‘Bed ofRoses,”’9 his claims about his role in changing the man­ ner in which the Court issued its opinions,10 and, in particular, his biting comments about his fellow Justices: that “Cushing was incom­ petent, Chase could not be got to think or write—Patterson was a slow man & willingly declined the trouble, & the other two judges [Marshall and Washington] you know are com­ monly estimated as one judge.”11 But the full text ofthe December 10th letter has never been printed, a startling omission given its content and importance.12 That oversight will presumably be recti­ fied with the eventual publication of the vol­ ume in the Jefferson Papers Retirement Series dealing with the years 1822 and 1823.13 In the interim, it seemed appropriate to provide both a transcript ofthe letter and a briefdiscussion of why it merits our attention. There are two principal reasons for this. First, it is important to place those portions of the December 10th letter that have been quoted in the wider con­ texts offered by its full text and the sequence ofletters within which it appeared. Second, the full letter is well worth considering on its own merits, both for what it says about the events and controversies of the period and the lives and views of its author and recipient.§ William Johnson, Jr. was educated at Princeton and read law under the tutelage of Charles Cotesworth Pinckney in his home city, Charleston, South Carolina.14 Johnson was by all accounts an intelligent and able individual, “a man ofconsiderable...

GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test

In order to unlock the proverbial doors to the International Centre for Settlement of Investment Disputes, an investor must gain the key by convincing the arbitral tribunal that the economic activity constitutes an investment under both the applicable investment treaty or contract and Article 25(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Pursuant to Article 25, the jurisdiction of the Centre depends upon the existence of a dispute ‘arising directly out of an investment’. The founding fathers of the ICSID Convention did not define the term ‘investment’. Against this backdrop, a trend is discernable, according to which arbitral tribunals have applied a more restrictive approach by importing objective criteria into Article 25, known as the so-called Salini test. Tension arises between the definition of an investment set out in the instrument providing consent to ICSID jurisdiction and the reliance that arbitral tribunals place on the objective criteria of an investment in Article 25. The issue boils down to two opposing principles of treaty interpretation. One view relies on a textual approach to treaty interpretation and the other side relies on the teleological approach to treaty interpretation. Instead of crafting an award that provides guidance on the critical question of interpretation, the high calibre arbitral tribunal in the recent case of GEA Group Aktiengesellschaft v. Ukraine ultimately sidestepped the controversy leading the distinguished arbitral tribunal away from what could have been a legally significant decision on this longstanding debate.

Introduction

Introduction Melvin I. Urofsky Every time I sit down to write an introduc­ tion to the next issue oftheJournal, I shake my head in amazement. It is not that the articles we publish are good; they have to be, or we would not be running them. Rather, it is the great and growing diversity ofmaterial that fits into the rubric of Supreme Court history. As those of you who went to law school before the “new” legal history took hold in the 1980s, and even for some of you who went afterward, study of the Supreme Court meant parsing cases. There might be an occasional course inconstitutional historythatwould look beyond the cases to the broader political, eco­ nomic or cultural events taking place at the time, and even a rare course in judicial biog­ raphy. One read cases to get the bottom line— what does this case contribute to what the law is now. Digressions on law and economics, law and literature, and other “esoteric” views were offered, ifat all, in elective courses. Unfortunately, that situation still holds true in many law schools, but over the past two decades law professors, historians, and polit­ ical scientists have come to appreciate that to truly understandthe Supreme Court and its de­ cisions, one has to look further than the “bot­ tom line.” This is the approach we have triedto take in the Journal, and from your comments it appears to be succeeding. Who would have thought only a few years ago, for example, that we would carry an ar­ ticle on Muddy Ruel, a professional baseball player who wound up in the Supreme Court not to sue the professional leagues but to join the bar of the Court. What pleases me most is that the article comes from a law professor, Robert Jarvis ofNova Southeastern University Law School. Douglas Abrams, associate professor of law at the University of Missouri, looks not only at a famous decision—the second flag salute case—but examines Justice Jackson’s iconic opinion not only for the law it ex­ pounded, but for the inherent passion in it that shows us another side ofajustice who truly de­ serves far more attention than he has received. While we get many ofour articles through the mail (usually e-mail) and from the Soci­ ety’s annual lecture series, Tim Huebner, who has joined us as associate editor, and I often find articles by talking to people we know. v vi JOURNAL OF SUPREME COURT HISTORY And sometimes there is just plain luck in be­ ing at a certain place at the right time. Last year I chaired a session at the annual meet­ ing of the Organization of American Histori­ ans, and Marc Lendler, a government profes­ sor at Smith College, gave a paper on Gitlow v. New York that looked at the majority decision in what I thought was a new and interesting light. So I asked Marc to turn the oral presen­ tation into an article for the Journal, which he did, and we are pleased to present it. Each year the Society sponsors a lecture at the time of the annual meeting, and this past year Judge Judith Kaye spoke on the law of juvenile justice as it has been shaped by the Court. Judge Kaye served for fifteen years as chiefjudge ofthe New York Court of Appeals, the state’s highest tribunal, longer than any other chiefjudge in New York his­ tory. After her retirement in 2008 she joined Skadden Arps as counsel. A few years ago the common wisdom was that one could not write very much about law clerks because of the oath of confiden­ tiality they took, but that was before Todd Peppers came along. The Fowler Professor of Public Affairs at Roanoke College, Pep­ pers realized that there is a great deal that can be mined about clerks and their relation­ ships to their justices that does not involve breaking the oath, and we have been happy to open the Journal to his articles. In this issue he talks about Justice Hugo Black and how he mentored his clerks, both in the library and on the tennis court. Years ago, when...

Introduction

Introduction Melvin I. Urofsky As we go to press, we have just received word of the resignation of Justice John Paul Stevens from the Supreme Court after a long and distinguished career. The Journal will pay tribute to Justice Stevens, long a friend of the Society, in our next issue. The case of Dred Scott (1857) continues to receive attention more than a century and a half after the Taney Court handed down what Chief Justice Charles Evans Hughes called a “self-inflicted wound.” Scholars and layper­ sons alike for many years were unanimous in their condemnation of Chief Justice Taney’s opinion, which is considered one of the worst case examples ofjudicial activism and a cause ofthe Civil War that broke out four years later. More recent scholarship, while not defending slavery, notes thatthe Court had precedents for at least some of its arguments, and that it also mirrored public sentiment in many important particulars. Associate Justice Stephen Breyer reflects some ofthis new thinking in his visit to one ofthe most famous—or infamous—cases in the Court’s history. While we do take the Court and its mem­ bers seriously, we need to be reminded from time to time of Judge Jerome Frank’s ad­ monition that just because a person dons the silk robe, he or she does not stop be­ ing a fully rounded human being with inter­ ests that reach beyond the bench. The ancient and noble game of golf is, when referring to government leaders, often associated with the executive branch. William Howard Taft, Dwight Eisenhower, and William J. Clinton were all well known for their love of—if not always success at—playing the game. But apparently members of the Court also en­ joyed going to the links, and Ross Davies shows us how two members of the Court be­ came enamored of—one might even say ad­ dicted to—trying to get that little ball into the cup. While working on his dissertation at the University of Minnesota, David Schroeder experienced what every graduate student in history dreams about: getting access to a hith­ erto unknown cache of private documents. In his case, the family of Justice Pierce Butler allowed him to examine a box of letters that Butlerwrote to his son duringthetime between Butler’s nomination to the Court by President v vi JOURNAL OF SUPREME COURT HISTORY Warren G. Harding in late 1922 and the time he took the oath in early 1923. In those days, nominees did not appear personally before the Senate Judiciary Committee, and so could not personally answer charges made against them. How Butler felt about the attacks on him and how he weathered the storm comprise the basis for this article. Well into the latter part of the twentieth century, historians ofthe Court had to rely pri­ marily on the published record, the briefs filed by litigants, and the opinions in the U.S. Re­ ports. Not until Harlan Fiske Stone allowed Alpheus T. Mason access to his Court papers did we begin to get a glimpse of the inner workings ofthe nation’s highest tribunal. Since then, other Justices have allowed scholarly ac­ cess to theirpapers, usually by depositing them in the Library of Congress and occasionally placing time restrictions on when they will be opened. But when we do begin to read the case files, the notes left by Justices and their clerks, as well as the inter-Chambers memoranda, we get a much better idea of how the Court con­ ducts its business. L.A. Powe, a professor of law at the University of Texas Law School, experienced the business of the Court first­ hand when he served as a law clerk to William 0. Douglas, and his books on the Court have been marked not only by a keen intelligence but also by a familiarity with the Court’s in­ ner workings. In this article, he shows how the Warren Court’s efforts to deal with obscenity and the strictures of the First Amendment led to some compromises among the Justices that adversely affected at least one person, Ralph Ginzburg. Today, we are so used to Justices issu­ ing concurring opinions...

Combating “Mohammedan Indecency”: The Baptism of Muslim Slaves in Spanish Naples, 1563-1667

AbstractIn the century following the Council of Trent, ecclesiastical authorities in Naples embarked on a campaign, the largest of its kind in Italy, to convert the city's Muslim slaves to Christianity. For the Church, the conversions were not only important for the conquest of individual believers, but symbolic occasions that demonstrated on a small scale important themes of Christian ethics and anti-Islamic polemic. At the same time, the number and frequency of the conversions forced secular authorities to confront the problem of the civil status of newly baptized slaves. During the seventeenth century, one of the highest tribunals of the state heard a series of cases that pitted baptized slaves who demanded their freedom against slave owners who saw their religious identity as unimportant.

Prosecuting the Leaders: Promises, Politics and Practicalities

Given recent developments in relation to the prosecution of international crimes, it might be thought that one of the last bastions of sovereignty has been breached, and international criminal law has not only entrenched itself in international law. Indeed further to this, it has assumed a supranational position that stands entirely above States, promising justice for all and as a trump card over depredations committed in the name of State sovereignty. After all, Charles Taylor from Liberia is standing trial before the Special Court for Sierra Leone, Slobodan Milosevic only escaped judgment by the International Criminal Tribunal for the former Yugoslavia (ICTY) by dying before the end of his trial, Saddam Hussein was prosecuted and sentenced to death before the Iraqi High Tribunal, and Omar al-Bashir has recently been the subject of a request for an arrest warrant from the Prosecutor of the International Criminal Court. Surely international criminal law reaches its iconographic apogee with the prosecution of such leaders, brought down to size by the majesty of the law (if not the grandeur of the often aseptic courtrooms)?

A Comparative Analysis of a Pregnant Woman’s Rights to Abortion

Contrasting the interesting decisions of two highest tribunals in Germany and the United States, this article suggests that two highest courts have dealt with the issue of abortion by applying a similar yardstick, namely, a balancing test. Both courts might have been under influences derived from each other, alluding that a pregnant woman has the right to abortion qua the right to privacy, which comes within the purview of the constitutional provisions, such as, Basic Law Article 2 (1) and the Fourteenth Amendment to the United States Constitution. The German Federal Constitutional Court’s decisions and the United States Supreme Court’s decisions are compared in order to find similar constitutional jurisprudence between the two highest tribunals on abortion, rather than the differences. However, the Gonzales v. Carhart case, handed down by the United States Supreme Court in April 18, 2007, which may seriously erode the Roe-Casey line of precedent vis-a-vis a woman’s right to abortion, made the dissenting opinion voiced by Justice Ginsburg that the plurality opinion would chip away the core value of Roe v. Wade persuasive. Therefore, I am tempted to claim that the United States Supreme Court should remain with the distinctive traditions established by Roe and Casey, an effort to protect a pregnant woman’s right to abortion notwithstanding Gonzales v. Carhart, and the Korean Constitutional Court would be better off if it takes into account the converging rationale and yardstick applied to the abortion cases of the two influential highest courts save Gonzales v. Carhart when deciding the constitutionality of a ban on abortion in Korea.

Were There More Acceptable Alternatives to the Iraqi High Tribunal?

The Iraqi High Tribunal has been criticized on all sides for its failure to deliver fair trials. Many observers have advocated an international or internationalized court instead. However, these alternatives, even if desirable, were outside the ambit of what was possible in post-war Iraq. Given that a domestic court was the only realistic option, much more help and support should have been given to it by the international community.

A Suicide Right for the Mentally Ill? A Swiss Case Opens a New Debate

A Suicide Right for the Mentally Ill?A Swiss Case Opens a New Debate Jacob M. Appel (bio) Advocates for the legalization of assisted suicide in the United States, including those who sponsored Oregon's Death with Dignity Act in 1994 and current backers of California's proposed Compassionate Choices Act, have sought to permit the practice only under highly limited circumstances-namely, when the requesting patient is terminally ill.1 In contrast, the Netherlands allows physician-assisted suicide in nonterminal cases of "lasting and unbearable" suffering, and Belgium authorizes physician-assisted suicide for nonterminal patients when their suffering is "constant" and "cannot be alleviated."2 Yet no country has laws on the subject as liberal as those of Switzerland, where assisted suicide has been legal since 1918. It remains the only jurisdiction that allows nonresidents to terminate their own lives.3 It is also the only jurisdiction that does not require that a physician be involved in the process. Now, a recent decision by the Swiss Federal Supreme Court threatens to undermine yet another longstanding taboo in the debate over assisted suicide and euthanasia. In its ruling on November 3, 2006, the high tribunal in Lausanne laid out guidelines under which, for the first time, assisted suicide will be available to psychiatric patients and others with mental illness.4 The case was that of an unnamed fifty-three-year-old manic depressive with two prior suicide attempts who sought a prescription for fifteen grams of sodium pentobarbital in order to end his own life.5 He claimed a right to self-determination under Article 8 of the European Convention on Human Rights and alleged that no physician would prescribe him this lethal dose for fear of legal or professional repercussions.6 Dignitas, a Zurich-based advocacy group, supported his suit. The Swiss high court responded with a sweeping opinion upholding the right of those suffering from "incurable, permanent, severe psychological disorders" to terminate their own lives.7 According to the court, a distinction should be made between temporarily impaired individuals who wish to die as "an expression of treatable psychological disturbances" and those individuals with severe, long-term mental illness who have made "rational" and "well-considered" decisions to end their lives to avoid further suffering.8 Since serious mental disorders could make life seem as unbearable to some patients as serious somatic ailments do to others, the court reasoned, those who repeatedly expressed a wish to end their lives under such circumstances should be permitted to do so. (The court also ruled that the plaintiff in this case would have to obtain a thorough psychiatric evaluation to determine whether he met these standards before he could end his life.) Both supporters and opponents of assisted suicide have been highly critical of extending suicide rights to psychiatric patients.9 One set of objections is directed against the practice of assisted suicide itself-for a host of reasons ranging from a belief in the inherent sanctity of human life to a fear of sliding down a slippery slope toward involuntary euthanasia; that debate has been extensively addressed elsewhere. Another set of objections are from those who support a basic right to assisted suicide in certain situations, such as those of terminal disease, but do not wish to extend it to cases of severe and incurable mental illness. This resistance may be inevitable, considering the increased emphasis that contemporary psychiatry places on suicide prevention, but the principles favoring legal assisted suicide lead logically to the extension of these rights to some mentally ill patients.10 At the core of the argument supporting assisted suicide are the twin goals of maximizing individual autonomy and minimizing human suffering. Patients, advocates believe, should be able to control the decision of when to end their own lives, and they should be able to avoid unwanted distress, both physical and psychological. While these two principles might explain why a victim of amyotrophic lateral sclerosis or cancer would choose assisted suicide, they apply equally well in many cases of purely psychological disease: a victim of repeated bouts of severe depression, particularly in cases where treatment has consistently proven ineffective, rationally might prefer dignified death over future suffering...

The Challenges Faced by the Iraqi High Tribunal: The Dujail Trial

AbstractFrom its creation as an "internationalized domestic tribunal" until the execution of his first sentence in the Dujail case, the Iraqi High Tribunal has been criticized by States, International as well as Non-Governmental Organizations and scholars. This article provides a comprehensive analysis of the first and most expected decision of the Iraqi High Tribunal: the condemnation and execution of the former dictator Saddam Hussein.The first part of the article describes the controversy over the choice of tribunal and explains how, in the context of the multiplication of international and hybrid criminal bodies, the decision of the Iraqi government to create a domestic court with some international law elements has added fuel to the criticisms and complicated the task of the Tribunal to render justice.The second part of the article scrutinizes the Tribunal decision in the Dujail case. The International Community was eager to read how the Tribunal would deal with the exceptions to the competence raised by the defendants. Despite a very lengthy decision, the response of the Tribunal was not entirely satisfactory. Furthermore, the aspects of the merit dealing with international law precedents were quite disappointing.Finally, the third part of the article examines the legality of the death penalty. Saddam Hussein and his co-defendants were hanged immediately after a short and fast appeal procedure. Consequently, the reactions towards the execution have been strong and highly critical.

‘Public’ Science: Hydrogen Balloons and Lavoisier's Decomposition of Water

Summary The balloon mania between 1783 and 1785 put an extraordinary strain on the Paris Academy of Sciences, threatening its status as the highest tribunal of European science. Faced with repeated royal directives and public frenzy, the Academy manoeuvred carefully to steer the research toward the hydrogen balloon and thereby to maintain its scientific superiority. Antoine-Laurent Lavoisier seized this moment when the promise of ‘the empire of airs’ brought science to the centre of public attention to push his theoretical reform for chemistry. He utilized the established protocol of the Academy and the resources of the Republic of Letters to broadly publicize his first decomposition of water in April 1784. Once he attained the publicity and the balloon fever began to cool, he staged a much more elaborate experiment for the experts in February 1785. Although this second, large-scale experiment cost much expense and effort, Lavoisier never published a full account. The differential care given to the two experiments can only be understood in their divergent rhetorical contexts. The written accounts in 1784 addressed the court of public opinion, while the exclusive performance in 1785 aimed at the court of experts to inaugurate the collaborative phase of the Chemical Revolution.