Legal Struggle Research Articles

Frontline: The Rainbow Warrior, secrecy and state terrorism: A Pacific journalism case study

France detonated 193 of a total of 210 nuclear tests in the South Pacific, at Moruroa and Fangataufa atolls, before halting them in 1996 in the face of Pacific-wide protests. On 10 July 1985, French secret agents bombed the Greenpeace flagship Rainbow Warrior in Auckland Harbour, killing photographer Fernando Pereira, in a futile bid to stop a protest flotilla going to Moruroa. The author was on board the Rainbow Warrior for more than 10 weeks of her last voyage. He was awarded the 1985 New Zealand Media Peace Prize for reportage and investigations into the ‘Rainbow Warrior and Rongelap Evacuation’. The following year, the author’s book Eyes of Fire told the inside story of state terrorism in the Pacific. He has subsequently reflected on a 20-year legal struggle by Television New Zealand and other media campaigners to prevent the French spies gagging reportage of their guilty plea from a public video record and the lingering secrecy about the health legacy of nuclear tests in the Pacific. In the context of the Frontlineproject for journalism as research, his work inspired a microsite—a community-driven collaborative project in 2015 coordinated by the publishers, Little Island Press, interrogating participants over a three-decade period and ‘challenging the nature of mainstream media in New Zealand’ with an alternative reader’s media model.

Curbing fraud or restraining speech?

Reporters and commentators engage the impassioned legal struggle over Exxon and climate. Reporters and commentators engage the impassioned legal struggle over Exxon and climate.

Negociación y convenios en el tardo-franquismo español

In the sixties a new era in terms of work relations based on collective bargaining began in Spain. This led to setting up a working-class culture of negotiation, implemented from the regime-established regulatory and institutional framework. This brought about changes in the strategy of working-class action in the field of work relations. It also led to growing opposition against the political regime from the inside. Sagunto steelworkers pioneered and led a new strategy of legal struggle that introduced negotiation as the main procedure to channel work relations. They eventually acquired the necessary strength, organization skills and experience that would enable future action once under democratic and freedom of association conditions.

„Poena sine lege” — czyny chuligańskie w orzecznictwie Komisji Specjalnej do Walki z Nadużyciami i Szkodnictwem Gospodarczym (1951–1954)

„Poena sine lege” — Hooligan Misdemeanours in the Adjudication of the Special Commission to Combat Embezzlement and Economic Sabotage (1951–1954)At the turn of the 1940s daily life in Stalinist Poland disclosed a growing phenomenon known as hooliganism, reflected in the press propaganda and statements made by politicians and lawyers. In November 1951 this topic became omnipresent in public discourse and the activity of the administration of justice. The article intends to present the adjudication of the Special Commission to Combat Embezzlement and Economic Sabotage, pertaining to misdeeds regarded as hooliganism. In view of the fact that in the 1949–1955 period both propaganda and the adjudication of the administration of justice applied the term: ”hooliganism” in a wholly arbitrary manner by using general criteria, it became necessary to depict its interdisciplinary systemic dimension as well as the propaganda, political, and legal struggle waged against it. The above–mentioned methodological and factual operation was indispensable since without its analysis it would be difficult to describe the mechanisms of the penalisation of hooliganism by the Special Commission, which in 1951–1954 sentenced for this “crime” 10 684 persons to labour camps, and fined 1 580 perpetrators. The Special Commission adjudication concerning hooliganism encompassed an extensive gamut of conduct (misdemeanours) treated not only in legal categories but also in social and political ones. Their classification was determined by the context of the committed ”crime” or misdemeanour. The adjudication praxis of the Special Commission demonstrates that incriminated hooliganism could be divided according to an adjective criterion into: “political”, “social” and “class”, i.e. crimes against life, health and property.

Could the International Criminal Court Strategically Prosecute Modern Day Slavery?

The international legal struggle against slavery holds a prominent place in the fight to protect human rights, and it has occupied a significant place in prosecutions before international tribunals since Nuremberg. It is also proscribed in the Rome Statute of the International Criminal Court (ICC) in several forms, including the crime against humanity of ‘enslavement’ and several sexual offences. But despite its importance, international tribunals since Nuremberg have only prosecuted slavery where that crime was one among many committed in the course of a particular conflict, and not for the purpose of eradicating the crime as such. This article examines whether the ICC could do just that c whether it could strategically initiate investigations and prosecutions designed to fight modern slavery. It addresses some of the legal issues that may complicate ICC involvement, with a focus on satisfying the chapeau elements of crimes against humanity. It also examines practical concerns for ICC slavery crimes investigations and prosecutions, including investigative capacity and resources, witness protection, and transborder investigation issues. It concludes by considering the purpose of ICC involvement in the fight against modern slavery.

The king's speech: Philip's rhetoric and democratic leadership in the debate over the Peace of Philocrates

I argue that Philip's speech was a central point of contention in the debate over the Peace of Philocrates and in the legal struggle between Demosthenes and Aeschines that followed it. The ambassadors supportive of the peace praised Philip's speaking ability as part of his philhellenism; in his defense speech as well Aeschines emphasized Philip's rhetorical knowledge in order to show the openness of the contest between the king and the ambassadors. Demosthenes, on the other hand, rejected the king's ability to speak. In so doing, he elevated his own role as the only orator capable of penetrating Philip's silence. For both Aeschines and Demosthenes, their characterizations of Philip's speech were crucial to their self-presentations as orators.

The Notions of Citizenship and the Civil State in the Egyptian Transition Process

This article deals with two notions that have become central in the Egyptian political and constitutional transition process since 2011 – citizenship and the “Civil State” – and presents the struggle to define them that took place during the 2012 writing of the Constitution. Even though the principle of citizenship is not seriously contested by any of the important political players, its scope and relationship with Islamic normativity (subordination, preeminence, or independence) have both been fiercely debated. As for the notion of the Civil State, it is characterized by an important semantic haziness, which results in a political tension around the issue of its definition, although there is relative consensus in Egypt regarding the term itself. The political and legal struggles around the writing and the adoption of the 2012 Constitution reveal how the tension related to these two notions has been embodied in the discussions surrounding several constitutional articles.

A Tale of Two Cities: Whole of Life Prison Sentences in Strasbourg and Westminster

The recent decision of the European Court of Human Rights (ECtHR) in Hutchinson v United Kingdom (2015) is the latest twist in the political legal struggle between Westminster and Strasbourg. Whilst the British government has made several successions to the ECtHR regarding the role of the executive in the imprisonment of lifers, the thorny issue of the whole of life tariff, and prospect of prisoner release under that tariff, has been an ongoing debate. Whilst the ECtHR appeared to directly challenge domestic policy in the preceding decision in Vinter and Others v United Kingdom this latest decision, the seeming retreat from Vinter, by the Fourth Section of the court, appears to be more of a response to hard line domestic politics than a continuation of holistic legal principle which the ECtHR has outwardly supported in the past.

"Humbug" or "Human Good?": E.P. Thompson, the Rule of Law and Coercive Labor Relations Under Neoliberal American Capitalism

E.P. Thompson maintained a steady ambivalence toward “the rule of law” in the context of early modern England, famously calling it, in Whigs and Hunters , both “humbug” and an “an unqualified human good.” Working-class people, Thompson claimed, could gain or lose ground through the legal system, as anywhere else; they could make use of the state, and embed their victories into its juridical structure, as well as be crushed by it. In this article, I argue that Thompson’s perspective serves us well in understanding legal struggles and outcomes over the terms of coerced labor, longstanding under liberal American capitalism, yet, increasingly brought into the market, privatized, or expanded in the neoliberal United States. I describe this process as the dialectic between repression, competing systems of rights, and change across a number of examples: the emergence of “workfare” in the 1960s and 1970s, culminating in the 1996 federal law signed by President Clinton; the privatization of the modern prison, and, forced labor within it; state control over deportable labor; and the legal regime underlying globalized production—e.g., the denial of legal standing to workers abroad to sue American interests. In each case, I note how there has been pressure exerted “from the bottom up,” as workers have engaged discourses of formal equality and norms of liberalism to make claims on a legal regime that violates such principles even as it becomes increasingly part of market processes. Neoliberalism comes into view as an amalgam of legal coercion and a struggle over rights—the Janus face of the law described by Thompson—under conditions of market-based change.

After Camp: Portraits in Midcentury Japanese American Life and Politics by Greg Robinson (review)

Reviewed by: After Camp: Portraits in Midcentury Japanese American Life and Politics by Greg Robinson Nancy Kang (bio) After Camp: Portraits in Midcentury Japanese American Life and Politics, by Greg Robinson. Berkeley: University of California Press, 2012. Viii + 328 pp. $29.95 paper. ISBN 978-0-5202-7159-3. Readers who approach Greg Robinson’s After Camp: Portraits in Midcentury Japanese American Life and Politics hoping for a collection of Issei and Nisei survivor stories will be sorely disappointed. Only the third chapter (“Japantown Born and Reborn”), a triangulation of case studies based on resettlement experiences in New York, Detroit, and Los Angeles, inclines in that direction. There are, however, no sustained personal perspectives. Those seeking a non-chronological, “broad-based investigation” (2) of Japanese American pre- and postincarceration life will be gratified by the scope and conscientiousness of this ambitious historical project. After Camp resembles a patchwork quilt of discrete yet cohesive pieces. Divided thematically into five sections, the twelve chapters tackle such diverse issues as President Roosevelt’s plans for postwar resettlement and dispersal of former internees; the negotiation of citizenship values by Nisei (second-generation) intellectuals, politicians, artists, and activist collectives like the Japanese American Citizenship League (JACL); the imperatives of assimilation amid public mistrust and discrimination; and the pre- and postwar connections forged among Japanese Americans, Mexican Americans, and African Americans. There is no core thesis to be proven so much as a multidirectional reconstruction of the cultural milieus into which the former “enemy aliens” found themselves released and expected to thrive. Robinson’s writing is eminently readable, with ample examples conveyed in an accessible yet erudite style that would appeal to general readers as well as fellow historians. Particularly strong are the chapters devoted to the “uneasy” [End Page 104] and “fragile” alliance between African Americans and Japanese Americans from the mid-1950s onward (217). The author traces the evolution of black–Asian solidarity based on common experiences of oppression such as media-fueled racism, housing discrimination, and restricted access to schooling, employment, and property ownership. Robinson deftly calls attention to the precedent-setting cooperation between the JACL and the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP). Discussing Brown v. Board of Education (1954) in the context of Korematsu v. United States (1944) and Oyama v. California (1948), he expertly underscores how Japanese American legal struggles laid the foundation for postwar civil rights legislation at the national level. The author then dissects frictions that arose between the two groups as the 1960s progressed. Attitudes ranging from avoidance and indifference to “bitter disdain” (226) characterized Nisei reactions to African American civil rights agitation. Others remained loyal to the spirit of camaraderie and mutual striving. Challenges were exacerbated by model minority discourses in the media that pitted assimilated, seemingly unobtrusive Asian Americans against “troublemaking” racial Others. Added to the fray were disagreements over controversial legislation like California’s Proposition 14 (on housing discrimination based on race and religion) and the fallout from the Watts Riots of 1965. This urban upheaval resulted in significant damage to Nisei-owned businesses and corroded the spirit of intergroup dialogue and cooperation. Overall, these incidents acted to diminish the closeness that had germinated decades earlier when, in the wake of Executive Order 9066, a “disproportionate” amount of support was offered by black intellectuals and communities for their Japanese American compatriots (157). Although African American institutional leadership remained largely silent on the matter, voices such as Harvard-educated lawyer Hugh E. Macbeth, writers George Schuyler and Langston Hughes, singer Paul Robeson, reporter Erna P. Harris, and attorney Pauli Murray challenged the long-held misconception that these two populations were largely uninvolved in each other’s historical strivings (161). Robinson’s inquiries whet the scholarly appetite for further investigation on this underexamined topic. In the spirit of crossing barriers, boundaries, and borders, this U.S.-born Canadian academic displays a refreshingly hemispheric approach to the preand postwar struggles of the internees. He does not omit commentary on Japanese Canadian incarceration and also focuses an entire chapter on the career of McGill University sociologist Forrest LaViolette, whom he describes as a political “paradox” (4) and “weak reed in...

For a politics of presupposed equality: The struggle for sexual minority freedom in Africa

abstractThis article relies on the thought of Jacques Rancière to plead for an emphasis on what Weeks (1999:36) refers to as a “moment of transgression” in the politics of struggle attendant on the emergence of the queer subject in Africa. As such, it argues that the queer subject's struggle in Africa should in the first place be approached and understood as a political struggle for equality, rather than or in addition to the prevalent emphasis on a legal struggle for the constitutional protection of human rights. Emphasising the political dimension – equality – of the emergence of the queer subject as a legal subject of human rights in Africa can circumvent popular Afro-essentialist objections that claims by sexual minorities for the recognition of sexual freedom (as part and parcel of their human rights) amounts to no more than a Western construct that does not befit Africa. The additional benefit resides in the fact that the focus advanced here allows the articulation of the queer subject's struggle in Africa without having to resort to the strategy of an identity politics (with all the pitfalls attendant on such a strategy). In addition, when the matter is approached from a strictly legal point of view, the equality that comes into view denotes a passive equality, an equality that is to be given or granted by the law. When, however, the matter is approached politically, an active notion of equality – an equality that is to be taken as part of freedom and as presupposed – becomes the focal point of the enquiry. The ultimate aim of this piece is to introduce the politics at stake in the queer subject's emergence in Africa through the lens of Rancière's work and to draw attention to the political significance of his notion of a presupposed or axiomatic equality.

No Man’s Land: Jamaican Guestworkers in America and the Global History of Deportable Labor by Cindy Hahamovitch

Hahamovitch, Cindy. No Man’s Land: Jamaican Guestworkers in America and the Global History of Deportable Labor. Princeton: Princeton University Press, 2011. its full effect in preventing workers from organizing to increase wages—the federal government having gone from protecting workers during their time in the North to undermining their ability to strike for better wages while in the South. Chapter five explains that the continuation of guestworker programs following the Second World War allowed growers to continue to pit groups of immigrants against each other and domestic workers to drive down labor prices and focus and prevent collective action. Chapter six continues by explaining that illegal immigration served to perpetuate guestworker programs as an alternative to illegal immigration. Chapter seven explains the stresses placed upon this system in the nineteen sixties as Jamaican workers began to strike regularly for better working conditions despite continuous deportations while Chapter eight details the legal battles that followed the militancy of farmworkers in the sixties and seventies. It argues that these court cases effectively did nothing to alleviate guestworkers work conditions as undocumented labor began to gain prominence. In chapter nine, the legal struggles of guestworkers continue into the eighties where they finally won cases against the sugar companies but lost appeals, access to legal immigration status, and jobs in the sugar fields—at the same time as the H2 program continued to expand. Chapter ten closes No Man’s Land by placing modern guestworker programs in their current global context, where increasingly female domestic workers continue to face adverse work conditions. No Man’s Land serves to demonstrate that guestworker programs were conceived as exploitative programs that were meant to give workers as few rights as possible. This book provides significant insight into the In No Man’s Land, Cindy Hahamovitch explores the history of guestworkers in the United States through in depth analysis of Jamaican guestworkers, while at the same time placing this history in its broader global context. “Guestworkers,” Hahamovitch argues, “exist on the spectrum between slavery and freedom,” (p. 3). The purpose of No Man’s Land, then, is to delineate the experiences of Jamaican guest workers in an effort to shed some light on precisely where on the spectrum guestworkers have lived throughout the program’s existence. Chapter one begins No Man’s Land by outlining the beginnings of guestworker programs worldwide, what Hahamovitch calls the first phase. This chapter reveals that the use of guestworkers replaced the use of indentured servants—the main difference being that indentured servants were allowed to remain in the country at the end of their contract—more out of governments responding to nativist sentiments rather than a lack of labor. Chapter two goes on to details the origins of the second phase of guestworker programs. Guestworkers in the United States were imported primarily to drive down labor prices during World War Two, growers having managed to bypass the immigration restrictions through intensive lobbying. Chapter three goes on to detail the arrival of Jamaican guestworkers and their initial assignment to farms in the North. Jamaican workers in the North were able to utilize their British citizenship to garner respect from white Americans, but chapter four shows that when Jamaicans were assigned to work in the South, it was clear that their deportability as guestworkers was utilized to

Decisões judiciais referentes ao agravo câncer: análise dos argumentos do direito à saúde

The implications of developing cancer demand that affected individuals and their families seek professional care, which are not always offered in a manner adequate to their needs. This leads them to appeal to court instances in order to guarantee their right to health. The goal of the present study is to analyze legal struggles in relation to the health of people with cancer. It is a qualitative documentary study analyzing 34 court rulings relative to the period of May 2008 to April 2009, made by the Mato Grosso Court of Justice (TJMT). Out of these, 88.2% were requests for medication, 11.7% for nutritional supplies, 2.9% for land transportation and 2.9% for neurosurgery. Throughout the analysis, we realized that the arguments used by the State were insufficient before those presented by the magistrate used to reaffirm the right to life as guaranteed by the constitution, which takes precedence over interests of the State. doi: 10.5216/ree.v16i2.24577.

Is Europe 'giving in to baby markets?' Reproductive tourism in Europe and the gradual erosion of existing legal limits to reproductive markets.

The main question in this article is how national legal orders in Europe, given their often restrictive laws on reproductive markets and assisted reproductive technologies (ARTs), are currently responding and should respond to reproductive tourism, in light of the fact that access to foreign reproductive markets seems to be making these national laws 'merely symbolic'. Although many national governments have finally managed after many years of political and legal struggles to establish a carefully balanced legal framework for the regulation of these often ethically and religiously sensitive matters, ironically reproductive travel seems to be turning national reproductive laws into a dead letter. Currently, as a reaction to these developments, new legal strategies are being proposed and explored. Within the European context, the view is gaining ground that laws that curb international reproductive markets and their accompanying streams of fertility tourism have become ineffective, meaningless, and even harmful. As a result, a certain tendency towards tolerance of reproductive markets and reproductive travel can be detected in both politics and academia. According to this line of reasoning, restrictive and prohibitive legislation should be replaced by more pragmatic policies that take the realities of reproductive markets as a starting point. From this perspective, the legal restrictions within the country of origin, rather than the lack of regulation in the country of destination, should be regarded as the core of the problem. As a result, an increasing number of scholars and policy makers are arguing for more lenient national policies towards ARTs, hoping to thereby remove the main incentive for aspiring parents to resort to foreign reproductive services. This emerging pragmatic strategy of tolerance towards reproductive tourism and international reproductive markets rests on three arguments, which are each critically examined in this article. Although these arguments offer valuable insights, several disadvantages and weaknesses tend to be overlooked. The critical examination of these pragmatic arguments is followed by a plea for a more positive understanding and recognition of the symbolic dimensions of reproductive legislation. It is argued that ART laws also have an important communicative, expressive and anthropological meaning and function, which surpass these laws' practical effectiveness. Alternatively, policies based on the pragmatic tolerance of reproductive markets show significant shortcomings, which also need to be taken into consideration by national governments when evaluating existing ART laws.

‘Domestic transnationalism’: legal advocacy for Mexican migrant workers' rights in Canada

Every year thousands of Mexicans travel to Canada to work in Canadian fields and greenhouses under the Mexico-Canada Seasonal Agricultural Worker Program. While the programme is often praised, it has also been the subject of persistent criticism about its failure to meet certain human rights standards. In this article, we examine the legal strategies civil society advocates of migrant workers have adopted to promote migrant workers' rights in Canada. Specifically, we examine legal struggles undertaken by the United Food and Commercial Workers union to challenge Ontario government legislation that does not permit collective bargaining by farmworkers in the province. We argue that this case demonstrates that despite the fact that many of the workers involved are transnationalized, appeals to international bodies or to international human rights standards have been of limited utility in promoting their rights. Despite frequent arguments about the increased relevance of international human rights and citizenship norms and transnational human rights advocacy, in this case the national and sub-national scales remain predominant. The result, we argue, is a form of ‘domestic transnationalism’, in which domestic political actors engage in advocacy within domestic legal institutions to promote the rights of a transnational mobile labour force.

Undocumented Immigrants' Performances and Claims of Urban Citizenship in Los Angeles

This study, based on 25 qualitative interviews, illustrates how undocumented unlicenced immigrants negotiate their rights to drive in Los Angeles (LA) County and contest some of the city's hegemonic practices. I illustrate the ways in which undocumented immigrants express their sense of citizenship and belonging at the level of the city and emerge as social actors. This essay demonstrates that urban citizenship needs to be understood as a political, legal and formal struggle as well as in substantive terms: as a performative rights-claiming activity.

"Max Weber Gesamtausgabe": Interim Report and Future Volumes

[MWS 14.1 (2014) 113-118] ISSN 1470-8078 Max Weber Gesamtausgabe: Interim Report and Future Volumes Christopher Adair-Toteff The publisher of the Max Weber Gesamtausgabe has recently an nounced the publication dates for the remaining volumes, so this is the appropriate time to briefly consider the most recent volumes and to offer some indication of what is yet to follow. Since the first volume appeared in 1984, J.C.B. Mohr (Paul Siebeck) has published more than thirty volumes. Most of these are found in the division (I) containing Weber's writings, while six are in the division (II) con taining letters and five are in the division (III) containing lectures. Beginning in 2009, six volumes have appeared; five of them will be briefly reviewed here because they are from Weber's later years. Of these five volumes, the oldest chronologically is the one de voted to the section on law in Wirtschaft und Gesellschaft Recht. (Band 22-3). While Weber wrote most of it before the war, he was drawing on decades' worth of personal training and critical inter action. Many of us have a tendency to think of Weber as a sociolo gist or less frequently as an economist; accordingly, we lose sight of the fact that he was educated as a jurist. As a result of his training he frequently brought a lawyer's approach to social and economic problems. Weber often had strong opinions, but it is in the area of legal theory that he seems to have had the strongest convictions. This helps explain why he made frequent and furious denuncia tions of the Neo-Kantian legal philosopher Rudolf Stammler. And, it also helps explain why he was so complimentary about Georg Jellinek and Hermann Kantorowicz. Weber strongly objected to the pseudo-scientific and value-laden writings by Stammler, but he clearly approved of the developmental notion of law utilized by Jellinek and he rather liked the notion of legal struggle endorsed by Kantorowicz. In Weber's view, laws, and especially founding laws and constitutions, cannot lay legitimate claim to being eternal ) Max Weber Studies 2014, Clifton House, 17 Malvern Road, London, E8 3LP. 114 Max Weber Studies and objective forms. Instead, they are between old and new legal forms, and t influenced by economic, political, and The latest volume (Band 1/23) is the 'Fir Gesellschaft and rather than being part of volume. The Editors have chosen this form because this section is the latest and the only part of Wirtschaft und Gesellschaft to have Weber's final approval. Unlike the subtitle to the other five volumes, this vol ume has the subtitle Soziologie. The book has three major chapters; the fourth chapter is comprised of only a few pages. The first chap ter contains the fundamental sociological concepts and includes Weber's famous definition of sociology as social action. But, it also contains definitions of many other basic concepts—'custom', 'order', struggle', 'power', and 'domination' ('Herrschaft'). The lengthy and complex second chapter contains the basic sociological categories of economics. Again, it is comprised of numerous definitions and explanations; ranging from the basic forms of economies, to the prin ciples of exchange, to the different forms of banking and trade, to the fundamental orders of economic transactions. It also contains a lengthy appendix on Georg Knapp's theory of money, which shows how Weber carefully read current works and it demonstrates his mastery of economics. The third chapter contains some of Weber's most extensive explorations of the three pure types of 'Herrschaften': 'traditional', 'rational', and 'charismatic'. Two things stand out in con trast to his discussions of 'Herrschaften' in the sections of Wirtschaft und Gesellschaft that were written prior to the war: the importance of 'legitimacy' and the emphasis on charisma. As with the other vol umes, this one contains extensive editorial material. Some of it is rather helpful, like the Glossary, and the Indices, but the 100 pages of Weber's own 'page corrections' will likely be of interest to a few spe cialists. The 100 page Introduction serves as a valuable guide to each of the three sections and was written by some of the most knowl edgeable experts...

Report: Boots pharmacists battle for a union

INTERNATIONAL union rights Page 28 Volume 21 Issue 1 2014 REPORT ❐ UNION RECOGNITION BATTLE [PDAU’s] request for recognition under the statutory procedure without conferring those rights on any other union (whether independent or not)’. The High Court challenge Sadly, Boots have sought to engage in a protracted legal struggle rather than listen to the majority of its own pharmacists. Following the CAC decision in favour of the PDAU, Boots Management Services Ltd. (Boots) initiated a judicial review. The High Court of Justice, examining the CAC’s decision, found the facts of the case to be in PDAU’s favour (the company was taking advantage of a loophole in British trade union law - allowing agreements with non-independent unions to block applications from independent unions). However, the judge went on to determine that when the CAC had ‘interpreted’ British trade union law so as to bring it into line with Article 11 of the European Convention on Human Rights that body had gone beyond its powers. A Boots pharmacist who did not want to be identified said: “Boots have made it perfectly clear to us as pharmacist employees that they don’t want the PDAU recognised for negotiating terms and conditions of pharmacists. What is worse is that they do not want any other union to do it either. My colleagues and I would like to make an informed democratic choice as to whether we want a union and which union should negotiate on our behalf. We don’t want the company treating us like children and denying us that right to our choice”. The possible solution: a declaration of incompatibility In its interim decision, the High Court invited the PDAU to make an application for a declaration of incompatibility between British law and the Convention. The PDAU filed that request with the Court on 11 February. If justice is done, the Court will find that Boots is operating outside agreed standards of collective bargaining, as enshrined in Article 11 of the European Convention on Human Rights: the right for people to join trade unions to protect their interests through collective bargaining. The High Court’s final decision could lead to broader rights for all UK workers if it rules that British law is incompatible with the obligations of the Convention. In the event that the Judge grants the application for incompatibility, the Crown has 21 days to respond, and the UK Parliament would be under pressure to amend the law to bring it into line with Article 11 of the Convention. Boots pharmacists battle for a union A British union is seeking a declaration that UK law is incompatible with European human rights principles JOHN MURPHY is General Secretary and MARK PITT is Assistant General Secretary of the Pharmacists’ Defence Association Union in Birmingham. T he Pharmacists’ Defence Association Union (‘PDAU’) has been engaged in a lengthy battle with the iconic British pharmacy chain Boots over its pharmacists’ right to seek representation through an independent union. The union, formed on 2 April 2008 and recognised as an independent union by the Certification Officer, represents pharmacists, pre-registration graduates and pharmacy undergraduates, but excludes directors of pharmacy companies, superintendents of pharmacy chains greater than ten shops and owners/proprietors of pharmacy businesses. It currently has more than 22,000 individual members. PDAU is currently seeking to make use of the UK’s statutory recognition framework to require the employer to recognise the union. The union has broad support among employees in the proposed bargaining unit, who want effective representation to protect and enhance their terms and conditions in the workplace, which also have an impact on patient safety. A recognition agreement with Boots will enable its pharmacists to have a true collective voice within the most powerful pharmacy multiple in the UK and secure their right to negotiate their terms and conditions through an independent union. Initial success The Trade Union and Labour Relations (Consolidation) Act of 1992 (‘TURLCA’). TURLCA allows for unions to apply to the UK’s recognition adjudication service, the Central Arbitration Committee (‘CAC’), which can require an employer to recognise the union for collective bargaining. However, the application can be blocked if an employer has already...

Freedom's frontier: California and the struggle over unfree labor, emancipation, and reconstruction

Most histories of the Civil War era portray the struggle over slavery as a conflict that exclusively pitted North against South, free labor against slave labor, and black against white. In Freedom's Frontier, Stacey L. Smith examines the battle over slavery as it unfolded on the multiracial Pacific Coast. Despite its antislavery constitution, California was home to a dizzying array of bound and semibound labor systems: African American slavery, American Indian indenture, Latino and Chinese contract labor, and a brutal sex traffic in bound Indian and Chinese women. Using untapped legislative and court records, Smith reconstructs the lives of California's unfree workers and documents the political and legal struggles over their destiny as the nation moved through the Civil War, emancipation, and Reconstruction. Smith reveals that the state's anti-Chinese movement, forged in its struggle over unfree labor, reached eastward to transform federal Reconstruction policy and national race relations for decades to come. Throughout, she illuminates the startling ways in which the contest over slavery's fate included a western struggle that encompassed diverse labor systems and workers not easily classified as free or slave, black or white.

It'll Break Your Heart Every Time: <i>Flood v. Kuhn</i>, (Baseball) Romanticism and the Fallibility of Courts

The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology. When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.