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  • A Higgins and I Levy, 'What the Fair Minded Observer Really Thinks About Judicial Impartiality' (2021) 84 Modern Law Review 811
    DOI: doi.org/10.1111/1468-2230.12631
    This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (FMO) test used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test, judges imagine whether an FMO would see a risk of bias on the part of the judge. To the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically. We conducted nationally representative public surveys in the UK and Australia, asking respondents what they think about different situations of possible bias (N = 2064). Our results indicate that a gap exists between the FMO created by the courts and public opinion in both countries across a number of scenarios thought to give rise to possible bias, including financial relationships, the risk of prejudgement and fact patterns based on leading cases.
  • S Atrey and G Pillai, 'A Feminist Rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: Proposal for a Test of Discrimination under Article 15(1)' (2021) Indian Law Review
  • MM Jackson and R Arnold, 'Article 28 - Responsibility of Commanders and Other Superiors' in Ambos (ed), Rome Statute of the International Criminal Court: A Commentary (Beck 2021) (forthcoming)
  • S Atrey, 'Beyond Discrimination: Mahlangu and the Use of Intersectionality as a General Theory of Constitutional Interpretation' (2021) International Journal of Discrimination and the Law [Case Note]
  • S Atrey, 'Feminist Constitutionalism: Mapping a Discourse in Contestation ' (2021) International Journal of Constitutional Law
  • MM Jackson, 'Judicial Avoidance at the European Court of Human Rights: Institutional Authority, the Procedural Turn and Docket Control' (2021) 19 International Journal of Constitutional Law (forthcoming)
  • S Atrey, 'On the Central Case Methodology in Discrimination Law' (2021) Oxford Journal of Legal Studies
  • S Atrey, 'Structural Racism and Race Discrimination ' (2021) Current Legal Problems
    DOI: 10.1093/clp/cuab009
    What is the relationship between ‘racism’ and ‘race discrimination’? The paper explores this question. It shows that once we look beyond racism understood colloquially as individual bigotry, to racism understood in a structural sense as embedded in the social, economic, cultural and political dimensions of the State itself, it is possible to locate racism in the practice of discrimination law, within the category of race discrimination. Yet, discrimination law frequently fails to grasp structural racism. The paper reveals how this happens and in turn shows how race discrimination can be infiltrated with a structural view of racism. The overall purpose is to establish that discrimination law fails to be relevant in the face of contemporary forms of racism in the absence of a structural view.
  • A Higgins, 'What Price Are We Willing to Pay for the Dream of Equal Justice ' (2021) Oxford Journal of Legal Studies [Review] (forthcoming)
    DOI: 10.1093/ojls/gqab002
    The injustices wrought by unequal access to the legal system pose a direct threat to the rule of law, yet such injustices are widespread in England and elsewhere. Lawyers regularly criticise governments for a lack of funding for the legal system, but the private market for delivering legal services receives much less scrutiny. A private market for legal resources is antithetical to equal justice because it makes the outcome of cases turn on arbitrary factors such as wealth. The solution, according to Wilmot Smith in his book Equal Justice, is to socialise the allocation of legal services so that the rich cannot buy the best lawyers, and to prevent them from contracting out of this public system by making private arbitrations unenforceable. This review article argues Wilmot Smith’s thesis is persuasive, but there might also be second best solutions that could deliver greater legal equality at lower cost.
  • S Fredman, ' Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality ' (2020) Oxford Journal of Religion and the Law 1
    DOI: https://doi.org/10.1093/ojlr/rwaa017
    Tolerance has always been a central principle underpinning freedom of religion. But what if a person’s deeply held beliefs include intolerance of others’ rights or freedoms? Does tolerance of religious difference include tolerating intolerant behaviours? The paradox of tolerance has been thrown into relief by recent case-law on ‘complicity’ claims by religious adherents. Complicity claims assert that freedom of religion includes the right to exemptions from laws which the claimant regards as making her complicit in the sinful behaviour of others. Accommodating such claims can be stigmatic and demeaning of third parties. This paper argues that, in the context of complicity claims, neither tolerance nor neutrality can determine what weight to be given to the conflicting interests. Rather, they operate to disguise background value judgements. Instead, a proportionality analysis should be applied which is based on a hierarchy of values which expressly locates itself in substantive equality. Using a multi-dimensional conception of the right to substantive equality, the paper examines recent case-law on complicity claims in the US, UK, Canada and under the ECHR. Part II sets up the analytic framework. Parts III and IV apply the analysis to complicity claims in relation to LGBTQI and reproductive rights respectively.
  • S Atrey, 'Beyond Universality: An Intersectional Justification of Human Rights’ ' in S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • C O'Regan, 'Contemporary challenges for human rights: a view from South Africa' in Simon Mount and Max Harris (eds), The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (LexisNexis 2020)
    ISBN: 9781988546070
  • S Atrey, 'From Me to We: Locating Dalit Women in #MeToo' in A Noel and D Oppenheimer (eds), Globalization of the #MeToo Movement (Fastcase 2020)
  • S Atrey, 'Intersectionality and Comparative Antidiscrimination Law: The Tale of Two Citadels' (2020) Brill Research Perspectives in Comparative Discrimination Law
  • S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • A Higgins, 'Keep Calm and Keep Litigating' in A Higgins (ed), The Civil Procedure Rules at 20 (Oxford University Press 2020) (forthcoming)
    This paper presents a broad overview of some of the key challenges facing the civil justice system, touching on a number of themes addressed at the 20th anniversary conference in June 2019 of the CPR coming into force. The paper considers the case for redefining the legal definition of proportionality exclusively by reference to the private value of claim, and the public interest in the determination of the issues raised by the claim. To achieve this goal, it considers whether it is time to split the dual functions of the civil justice system – rule clarification on the one hand, and dispute resolution on the other hand. The paper also considers whether there is a deeper cultural resistance to making the civil justice system more accessible which is based on a belief that litigation is inherently divisive and socially undesirable. The paper rejects these concerns on the grounds it artificially separates the litigation process from the underlying dispute that gives rise to it. The paper concludes by presenting some empirical data on civil claims rates in England and other major legal jurisdictions, and English media coverage of litigation. The data suggests that litigation rates in England are actually higher than some comparable countries, and while there is some media pre-occupation with the risk of England developing a “compensation culture”, there is regrettably far less coverage of the key UK Supreme Court decisions that establish the legal principles that govern people’s everyday interaction. As a consequence, there is a risk that the public may develop a skewed picture of what the law provides.
  • GD Kalliyat Thazhathuveetil and Sameer Rashid Bhat, 'Navtej: A Queer Rights Jurisprudential Revolution?' (2020) 13 NUJS Law Review
  • A Higgins and Rabeea Assy (eds), Principles Procedure and Justice: Essays in Honour of Adrian Zuckerman (Oxford University Press 2020)
    This collection is in honour of Adrian Zuckerman, Emeritus Professor of Civil Procedure at the University of Oxford. Bringing together a distinguished group of judges and academics to reflect on the impact of his work on our understanding of civil procedure and evidence today. An internationally renowned scholar, Professor Zuckerman has dedicated his professional life to the law of evidence and civil procedure, drawing attention to the principles and policies that shape litigation practice and their wider social impact. His pioneering scholarship is admired by the judiciary and the academy and has influenced several major reforms of the civil justice system including the Woolf Reforms that heralded the introduction of the Civil Procedure Rules, and Lord Justice Jackson's Review of Civil Litigation Costs. His work has also informed law reform bodies and courts in other jurisdictions. Building upon Professor Zuckerman's work, the contributors address outstanding problems in the field of civil procedure and evidence, and in keeping with Adrian's record of always exploring new areas, the book includes chapters on the prospects for a digital justice system, including the new online court being developed in England and the potential role of algorithms in the court room.
    ISBN: 9780198850410
  • C O'Regan, 'Prosecutions and Politics in a Constitutional State: Prosecution of Heads of State in post-apartheid South Africa' in Andras Sajo and Renata Uitz (eds), Critical Essays on Human Rights Criticism (Boomuitgevers 2020)
    ISBN: 978-94-6236-123-2
  • A Higgins, Inbar Levy and Thibaut Lienart, 'The Bright but Modest Potential of Algorithms in the Courtroom' in Andrew Higgins and Rabeea Assy (eds), Principles, Procedure and Justice: Essays in Honour of Adrian Zuckerman (Oxford University Press 2020)
    This chapter investigates the potential of algorithms and machine learning (ML) to improve decision-making. It considers the best roles for algorithms while maintaining important elements of human judgment. There are essential human skills in judging, but algorithms could help systematize the judicial function and thus reduce the risk of human error, inconsistency, and individual bias. Algorithmic decision-making and ML could in principle mitigate these problems since algorithms are more consistent and rely on and can synthesize more data than a human. Yet, recent proposals to use algorithms in the civil justice system are still underdeveloped and face scepticism. This chapter evaluates the risks and benefits of using algorithms in adjudication by pointing out specific elements of legal skill and expertise and identifying tasks better suited for an algorithm. While there are significant reliability and fairness limitations in using AI to make legal decisions, it is important to recognize that many of these weaknesses already exist to varying degrees in human judicial decision-making.
    ISBN: 9780198850410
  • A Higgins (ed), The Civil Procedure Rules at 20 (Oxford University Press 2020) (forthcoming)
    The Civil Procedure Rules at 20 is an edited collection of essays and presentations to mark the 20th anniversary of the CPR coming into force. The contributors are distinguished current and former judges, practitioners and scholars working in the field of procedure. All of the contributors presented or chaired sessions at the CPR at 20 conference held at the Bonavero Institute of Human Rights at the Oxford Law Faculty and Mansfield College in June 2019.
  • A Higgins, 'The High Court conflates principle with history in denying privilege protection to data hack and leak victims: Glencore International AG v Commissioner of Taxation [2019] HCA 26' (2020) 39 Civil Justice Quarterly 99 [Case Note]
    In Glencore International AG v Commissioner of Taxation [2019] HCA 26 the High Court of Australia had to decide whether a privilege holder was entitled to injunctive relief to protect stolen privileged documents by relying on their privileged status alone and without resort to the equitable law of confidence. The Court answered that question emphatically in the negative, stating that such a change was without precedent and would amount to an abrupt and unprincipled development in the common law. This note argues the High Court’s decision was wrong on both counts, and its decision represents a missed opportunity to bring certainty to this area of the law in a way which is compatible with the universally accepted rationale for LPP. A basic flaw in the High Court’s reasoning is that it applied private law analysis—examining whether privilege can found an actionable claim right—to what is properly characterised as an immunity against the exercise of state power. It is submitted legal professional privilege should be recognised as an immunity against compellability and admissibility, i.e. legal use against the privilege holder, and that equity should be used in its auxiliary jurisdiction to protect the latter right where necessary.

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