Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. The article submits that owing to its unique constitutional stipulations, as well as to a general reluctance to engage foreign legal sources, U.S. jurisprudence lags behind an emerging global jurisprudential trend that increasingly views convicts’ disenfranchisement as a suspect practice and subjects it to judicial review. This transnational judicial discourse follows a democratic paradigm and adopts a “residual liberty” approach to criminal justice that considers convicts to be rights-holders. The discourse rejects regulatory justifications for convicts’ disenfranchisement, and instead sees disenfranchisement as a penal measure. In order to determine its suitability as a punishment, the adverse effects of disenfranchisement are weighed against its purported social benefits, using balancing or proportionality review. Part III analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), which proclaims that “every citizen” has a right to vote without “unreasonable restrictions.” The analysis concludes that the phrase “unreasonable restrictions” is generally interpreted in a manner which tolerates certain forms of disenfranchisement, whereas other forms (such as life disenfranchisement) may be incompatible with treaty obligations. This article submits that disenfranchisement is a normatively flawed punishment. It fails to treat convicts as politically-equal community members, degrades them, and causes them grave harms both as individuals and as members of social groups. These adverse effects outweigh the purported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected to balancing or proportionality review. The presumed facilitative nature of the right to vote makes suffrage less susceptible to deference-based objections regarding the judicial review of legislation, as well as to cultural relativity objections to further the international standardization of human rights obligations. In view of this, this article proposes the adoption of a new optional protocol to the ICCPR proscribing convicts’ disenfranchisement. The article draws analogies between the proposed protocol and the ICCPR’s “Optional Protocol Aiming at the Abolition of the Death Penalty.” If adopted, the proposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse.

The relevance of context in property law: a case for judicial restraint?

A distinction between the domestic and commercial context is commonly drawn in property law discourse and has been brought into focus by three recent House of Lords' decisions. The thesis of this paper is that while the distinction is a useful explanatory tool, it runs into difficulties when given legal effect by the courts. There is a definitional problem in understanding what is included within each context. Indeed, the distinction assumes the existence of a dichotomy when, in fact, the domestic and commercial spheres are better seen as a continuum. In Stack v Dowden, the majority of the House of Lords gave legal effect to context and considered that different rules should apply to determine ownership of the home. This paper locates its decision in the broader debate on judicial restraint and creativity. By analogy with current discussion of due deference in public law, it is suggested that, in light of the policy issues involved and the broader ramifications of the decision, insufficient justification was given for the approach adopted by the majority.

What is poverty? A diachronic exploration of the discourse on poverty from the 1970s to the 2000s

Poverty is central to the concept of development. However, the relevance given to particular aspects of poverty has changed over the years and with it the manner in which poverty has been represented. The following paper explores how concepts of poverty within the 'poverty discourse' have altered over a 30-year period. A diachronic analysis is performed to explore changes in the topical and thematic composition of the definitions, in addition to the manner in which poverty has been 'framed'. The results illustrated that poverty was variably framed across the decades ranging from a 'neutral' fact to a highly contested state with little agreement over causes and consequences. Nevertheless, the relational analysis revealed the de-problematization of poverty over time. The finding has clear implications for development praxis: poverty needs to be 'attacked', but the root causes, at least from a discursive perspective, may be ignored.

Dilettantes, discipline and discourse: requirements management for construction

Requirements management (RM), as practised in the aerospace and defence sectors, attracts interest from construction researchers in response to longstanding problems of project definition. Doubts are expressed whether RM offers a new discipline for construction practitioners or whether it repeats previous exhortations to adopt a more disciplined way of working. Whilst systems engineering has an established track record of addressing complex technical problems, its extension to socially complex problems has been challenged. The dominant storyline of RM is one of procedural rationality and RM is commonly presented as a means of controlling dilettante behaviour. Interviews with RM practitioners suggest a considerable gulf between the dominant storyline in the literature and how practitioners operate in practice. The paper challenges construction researchers interested in RM to reflect more upon the theoretical debates that underpin current equivalent practices in construction and the disparity between espoused and enacted practice.

On the discourse of construction competitiveness

It is contended that competitiveness is better understood as a discourse rather than as a characteristic that is supposedly possessed. The discourse of competitiveness derives its legitimacy from the enterprise culture that came to dominance during the 1980s. Current popularized theories of competitiveness are constituent parts of this broader discourse, which has had significant material implications for the UK construction sector. The dominant discourse of competitiveness amongst contracting firms is shaped by the need to achieve structural flexibility to cope with fluctuations in demand. Fashionable espoused improvement recipes such as total quality management, business process re-engineering, and lean construction legitimize and reinforce the material manifestations of the enterprise culture. In consequence, the UK industry is characterized by a plethora of hollowed-out firms that have failed to invest in their human capital. While the adopted model may be rational for individual firms, the systemic effect across the sector as a whole equates to a form of anorexia. However, the discourse of competitiveness is by no means monolithic and continues to be contested locally. There have also been numerous counter-discourses that have been mobilized in response to the undesirable externalities of unbridled enterprise. Currently, important counter-discourses promote the ideas of sustainability and corporate social responsibility.

Exploring the construction of social class in educational discourse: the rational order of the nation state versus global uncertainties

This article aims to create intellectual space in which issues of social inequality and education can be analyzed and discussed in relation to the multifaceted and multi-levelled complexities of the modern world. It is divided into three sections. Section One locates the concept of social class in the context of the modern nation state during the period after the Second World War. Focusing particularly on the impact of 'Fordism' on social organization and cultural relations, it revisits the articulation of social justice issues in the United Kingdom, and the structures put into place at the time to alleviate educational and social inequalities. Section Two problematizes the traditional concept of social class in relation to economic, technological and sociocultural changes that have taken place around the world since the mid-1980s. In particular, it charts some of the changes to the international labour market and global patterns of consumption, and their collective impact on the re-constitution of class boundaries in 'developed countries'. This is juxtaposed with some of the major social effects of neo-classical economic policies in recent years on the sociocultural base in developing countries. It discusses some of the ways these inequalities are reflected in education. Section Three explores tensions between the educational ideals of the 'knowledge economy' and the discursive range of social inequalities that are emerging within and beyond the nation state. Drawing on key motifs identified throughout, the article concludes with a reassessment of the concept of social class within the global cultural economy. This is discussed in relation to some of the major equity and human rights issues in education today.