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.

Why UK public lawyers need to be legal and political theorists

My aim in this article is to encourage UK public lawyers to engage with contemporary debates in legal, political and constitutional theory. My argument is motivated by three related concerns. First, there is an extricable link between these disciplines: behind every proposition of public law can be found a theory of law, govenment, the state and so on; secondly, public lawyers have historically neglected or fudged theory in their work; finally, a growing number of public lawyers are now using cutting-edge legal and political theories to fashion radical new understandings of the British constitution: other (more conservative-minded) public lawyers have no option, I argue, but to answer these new challenges. I illustrate my argument with reference to debates about Parliamentary sovereignty, the constitutional foundations of judicial review, political constitutionalism, and judicial deference.

Fair trade and European public procurement: legal principles and governance dynamics

Purpose The article examines principles of Fair Trade in public procurement in Europe, focusing on legal dimensions related to the European Public Procurement Directives. Design/methodology/approach The article situates public procurement of Fair Trade products in relation to the rise of non-state regulatory initiatives, highlighting how they have entered into new governance dynamics in the public sector and play a part in changing practices in sustainable procurement. A review of legal position on Fair Trade in procurement law is informed by academic research and campaigning experience from the Fair Trade Advocacy Office. Findings Key findings are that the introduction of Fair Trade products into European public procurement has been marked by legal ambiguity, having developed outside comprehensive policy or legal guidelines. Following a 2012 ruling by the Court of Justice of the European Union, it is suggested that the legal position for Fair Trade in procurement has become clearer, and that forthcoming change to the Public Procurement Directives may facilitate the uptake of fair trade products by public authorities. However potential for future expansion of the public sector ‘market’ for Fair Trade is approached with caution: purchasing Fair Trade products as a marker of sustainability, which started to be embedded within procurement practice in the 2000s, is challenged by current European public austerity measures. Research limitations/implications Suggestions for future research include the need for systematic cross-institutional and multi-country comparison of the legal and governance dimensions of procurement practice with regard to Fair Trade. Practical implications A clarification of current state-of-play with regard to legal aspects of fair trade in public procurement of utility for policy and advocacy discussion. Originality/value The article provides needed elaboration on an under researched topic area of value to academia and policy makers.

Fire-free land use in pre-1492 Amazonian savannas

The nature and scale of pre-Columbian land use and the consequences of the 1492 “Columbian Encounter” (CE) on Amazonia are among the more debated topics in New World archaeology and paleoecology. However, pre-Columbian human impact in Amazonian savannas remains poorly understood. Most paleoecological studies have been conducted in neotropical forest contexts. Of studies done in Amazonian savannas, none has the temporal resolution needed to detect changes induced by either climate or humans before and after A.D. 1492, and only a few closely integrate paleoecological and archaeological data. We report a high-resolution 2,150-y paleoecological record from a French Guianan coastal savanna that forces reconsideration of how pre-Columbian savanna peoples practiced raised-field agriculture and how the CE impacted these societies and environments. Our combined pollen, phytolith, and charcoal analyses reveal unexpectedly low levels of biomass burning associated with pre-A.D. 1492 savanna raised-field agriculture and a sharp increase in fires following the arrival of Europeans. We show that pre-Columbian raised-field farmers limited burning to improve agricultural production, contrasting with extensive use of fire in pre-Columbian tropical forest and Central American savanna environments, as well as in present-day savannas. The charcoal record indicates that extensive fires in the seasonally flooded savannas of French Guiana are a post-Columbian phenomenon, postdating the collapse of indigenous populations. The discovery that pre-Columbian farmers practiced fire-free savanna management calls into question the widely held assumption that pre-Columbian Amazonian farmers pervasively used fire to manage and alter ecosystems and offers fresh perspectives on an emerging alternative approach to savanna land use and conservation that can help reduce carbon emissions.

Pollen-based differentiation of Amazonian rainforest communities and implications for lowland palaeoecology in tropical South America

An ongoing controversy in Amazonian palaeoecology is the manner in which Amazonian rainforest communities have responded to environmental change over the last glacial–interglacial cycle. Much of this controversy results from an inability to identify the floristic heterogeneity exhibited by rainforest communities within fossil pollen records. We apply multivariate (Principal Components Analysis) and classification (Unweighted Pair Group with Arithmetic Mean Agglomerative Classification) techniques to floral-biometric, modern pollen trap and lake sediment pollen data situated within different rainforest communities in the tropical lowlands of Amazonian Bolivia. Modern pollen rain analyses from artificial pollen traps show that evergreen terra firme (well-drained), evergreen terra firme liana, evergreen seasonally inundated, and evergreen riparian rainforests may be readily differentiated, floristically and palynologically. Analogue matching techniques, based on Euclidean distance measures, are employed to compare these pollen signatures with surface sediment pollen assemblages from five lakes: Laguna Bella Vista, Laguna Chaplin, and Laguna Huachi situated within the Madeira-Tapajós moist forest ecoregion, and Laguna Isirere and Laguna Loma Suarez, which are situated within forest patches in the Beni savanna ecoregion. The same numerical techniques are used to compare rainforest pollen trap signatures with the fossil pollen record of Laguna Chaplin.

Impact of a drier Early-Mid-Holocene climate upon Amazonian forests

This paper uses a palaeoecological approach to examine the impact of drier climatic conditions of the Early-Mid-Holocene (ca 8000-4000 years ago) upon Amazonia's forests and their fire regimes. Palaeovegetation (pollen data) and palaeofire (charcoal) records are synthesized from 20 sites within the present tropical forest biome, and the underlying causes of any emergent patterns or changes are explored by reference to independent palaeoclimate data and present-day patterns of precipitation, forest cover and fire activity across Amazonia. During the Early-Mid-Holocene, Andean cloud forest taxa were replaced by lowland tree taxa as the cloud base rose while lowland ecotonal areas, which are presently covered by evergreen rainforest, were instead dominated by savannahs and/or semi-deciduous dry forests. Elsewhere in the Amazon Basin there is considerable spatial and temporal variation in patterns of vegetation disturbance and fire, which probably reflects the complex heterogeneous patterns in precipitation and seasonality across the basin, and the interactions between climate change, drought- and fire susceptibility of the forests, and Palaeo-Indian land use. Our analysis shows that the forest biome in most parts of Amazonia appears to have been remarkably resilient to climatic conditions significantly drier than those of today, despite widespread evidence of forest burning. Only in ecotonal areas is there evidence of biome replacement in the Holocene. From this palaeoecological perspective, we argue against the Amazon forest 'dieback' scenario simulated for the future.

Quantitative estimates of glacial and Holocene temperature and precipitation change in lowland Amazonian Bolivia

Quantitative estimates of temperature and precipitation change during the late Pleistocene and Holocene have been difficult to obtain for much of the lowland Neotropics. Using two published lacustrine pollen records and a climate-vegetation model based on the modern abundance distributions of 154 Neotropical plant families, we demonstrate how family-level counts of fossil pollen can be used to quantitatively reconstruct tropical paleoclimate and provide needed information on historic patterns of climatic change. With this family-level analysis, we show that one area of the lowland tropics, northeastern Bolivia, experienced cooling (1–3 °C) and drying (400 mm/yr), relative to present, during the late Pleistocene (50,000–12,000 calendar years before present [cal. yr B.P.]). Immediately prior to the Last Glacial Maximum (LGM, ca. 21,000 cal. yr B.P.), we observe a distinct transition from cooler temperatures and variable precipitation to a period of warmer temperatures and relative dryness that extends to the middle Holocene (5000–3000 cal. yr B.P.). This prolonged reduction in precipitation occurs against the backdrop of increasing atmospheric CO2 concentrations, indicating that the presence of mixed savanna and dry-forest communities in northeastern Bolivia durng the LGM was not solely the result of low CO2 levels, as suggested previously, but also lower precipitation. The results of our analysis demonstrate the potential for using the distribution and abundance structure of modern Neotropical plant families to infer paleoclimate from the fossil pollen record.

Palynological differentiation between genera of the Moraceae family and implications for Amazonian palaeoecology

The Moraceae family is one of the most abundant and ecologically important families in Neotropical rainforests and is very well-represented in Amazonian fossil pollen records. However, difficulty in differentiating palynologically between the genera within this family, or between the Moraceae and Urticaceae families, has limited the amount of palaeoecological information that can be extracted from these records. The aim of this paper is to analyse the morphological properties of pollen from Amazonian species of Moraceae in order to determine whether the pollen taxonomy of this family can be improved. Descriptive and morphometric methods are used to identify and differentiate key pollen types of the Moraceae (mulberry) and Urticaceae (nettle) families which are represented in Amazonian rainforest communities of Noel Kempff Mercado National Park (NKMNP), Northeast Bolivia. We demonstrate that Helicostylis, Brosimum, Pseudolmedia, Sorocea and Pourouma pollen can be identified in tropical pollen assemblages and present digital images of, and a taxonomic key to, the Moraceae pollen types of NKMNP. Indicator species, Maquira coriacea (riparian evergreen forest) and Brosimum gaudichaudii (open woodland and upland savanna communities), also exhibit unique pollen morphologies. The ability to recognise these ecologically important taxa in pollen records provides the potential for much more detailed and reliable Neotropical palaeovegetation reconstructions than have hitherto been possible. In particular, this improved taxonomic resolution holds promise for resolving long-standing controversies over the interpretation of key Amazonian Quaternary pollen records.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.