Controlling Consensual Sex Among Prisoners

Despite recent legal advances for LGBT citizens, including the Supreme Court's recognition of a constitutional right to engage in private, consensual, same‐sex sex, prisons continue to regulate sex in much the same way they have been doing since the nineteenth century. Nationwide, prisons bar consensual sex among prisoners, and those who violate this policy face severe punishment, including administrative segregation. Interviews with prison officials from twenty‐three states uncover beliefs linking consensual sex with violence that places the overall security of the prison at risk. While supporting LGBT rights and the decriminalization of same‐sex sex in society, officials insist that prisons are not suited for similar change. This article explains why prison officials have been so committed to this policy and argues that the time has come to reconsider prison regulation of consensual sex.     

The Dynamics of Enduring Property Relationships in Land

This article proposes a new way of looking at property relationships that will enrich our understanding of how they operate. It focuses on property rights in land which are consensual in origin, although this approach could usefully be applied both to non‐consensual property relationships and to other property types. Recognising both the temporal and spatial dimensions of land, the dynamics approach reflects the fact that most property relationships are lived relationships, affected by changing patterns and understandings of spatial use, relationship needs, economic realities, opportunities, technical innovations, and so on. Although evolving responsively to accommodate changing uses and new rights‐holders, these relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations. Our approach also explores how far the enduring, yet dynamic, nature of property relations is taken into account by a range of decision‐makers.     

Capabilities,capacity, and consent: sexual intimacy in the Court of Protection

This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.     

Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council

The Universal Periodic Review (UPR) of the United Nations HumanRights Council promises to be a useful tool for examining humanrights situations in states in an objective, non-selective,universal and transparent manner. It is an undertaking imbuedwith a shift from the former Commission's policies and practiceof shaming to a new consensual and cooperative model of humanrights evaluation. The experience of African countries, bothduring the negotiation over its normative and institutionalframework and in the two sessions of the Working Group on UPR,lays bare the challenges to the new human rights body and itsunique peer review mechanism. The article critically examinesthe participation of African countries in the UPR and highlightssome of the issues that deserve, at this early stage, the attentionof all those who mind to see the objectives of the UPR fullyrealised.     

Toward Rational Criminal HIV Exposure Laws

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.     

Advances and future directions in the study of children's neurobiological responses to trauma and violence exposure

One of the most exciting developments to emerge from the field in the past 20 years is the increasing attention to neurobiological responses to violence and trauma exposure. Although researchers have yet to identify a consensual pattern of neurobiological response to violence and trauma exposure, it does appear that some type of alteration in the hypothalamic pituitary adrenal (HPA) axis is likely. This article briefly reviews the multiple moderating factors that help account for the divergent patterns in HPA function as well as methodological advances that will continue to improve the assessment of HPA function in youth exposed to violence and trauma.     

协议管辖制度的进步与局限

本次《民事诉讼法》关于协议管辖制度的修改,统一了国内与涉外民事诉讼的适用标准,拓宽了其在国内民事诉讼中的适用范围,并将应诉管辖引入国内民事诉讼,这些调整体现出我国在管辖制度方面的进步。但在制度的细节上,例如合理限定协议管辖的范围、应诉管辖的要件,以及现有规则的法解释等方面,都需要做出进一步的理论探索和经验总结,以适应现代纠纷解决的需要。     

Fuzzy Legality and National Styles of Regulation: Government Intervention in the Israel Downstream Oil Market

This article examines the role of statute law in regulation and government intervention through a detailed historical case study of a crucial retail market. The history of state intervention in the Israeli oil supply market is dominated by "fuzzy legality," a concept expounded in a former article. Legal fuzziness allowed the industry, acting in concert with the government regulator, to retain a lucrative, practically non–accountable arrangement in changing politico–economic climates. Three central forces encouraged continuing fuzziness: a "cloud" of state security, institutional stickiness that preserved colonial mandatory legal structures, and a prevalent national culture of nonlegalism. The article ends with a careful suggestion regarding the Israeli national style of regulation. Compared to American "adversarial legalism," and its opposite, "consensual nonlegalism" the Israeli style may be termed "adversarial nonlegalism," and holds less promise for balancing market and public interests.     

Understanding research methods,limitations, and applications of drug data collected by the National Forensic Laboratory Information System (NFLIS-Drug)

The National Forensic Laboratory Information System (NFLIS) is a drug surveillance program of the US Drug Enforcement Administration that systematically collects data on drugs that are seized by law enforcement and submitted to and analyzed by the Nation's forensic laboratories (NFLIS-Drug). NFLIS-Drug data are increasingly used in predictive modeling and drug surveillance to examine drug availability patterns. Given the complexity of the data and data collection, there are some common methodological pitfalls that we highlight with the aim of helping researchers avoid these concerns. The analysis done for this Technical Note is based on a review of the scientific literature that includes 428 unique, refereed article citations in 182 distinct journals published between January 1, 2005, and April 30, 2021. Each article was analyzed according to how NFLIS-Drug data were mentioned and whether NFLIS-Drug data were included. A sample of 37 articles was studied in-depth, and data issues were summarized. Using examples from the literature, this Technical Note highlights eight broad concerns that have important implications for the proper applications, interpretations, and limitations of NFLIS-Drug data with suggestions for improving research methods and accurate reporting of forensic drug data. NFLIS-Drug data are timely and provide key information to inform drug use trends across the United States; however, our present analysis shows that NFLIS-Drug data are misunderstood and represented in the literature. In addition to highlighting these issues, DEA has created several resources to assist NFLIS data users and researchers, which are summarized in the discussion.     

合意管辖与应诉管辖之再探讨

合意管辖具有实体法律行为和诉讼行为的双重性质,对其分析需要从两个视角同时考察。而将应诉管辖理解为默示合意管辖并不妥当。就合意管辖和应诉管辖的基本要件而言,现行立法规定尚存在诸多不合理或有待澄清之处。合意管辖的效力在司法适用中产生的争议应当区分不同情形予以审查认定。     

COLLABORATIVE PRACTICE IN THE CANADIAN LANDSCAPE

This article looks at the growth of collaborative practice in Canada in the last decade and the legal and Canadian cultural underpinnings influencing this growth. Government recognition of and support for collaborative process has come from both the federal and provincial governments. Statutory support in family law statutes and in ethical standards for lawyers encourage alternate dispute resolution and have helped normalize consensual dispute resolution options. The article also looks at decisions from Canadian courts relating to the practice of collaborative law, including the confidentiality of collaborative process negotiations as set out in the participation agreement and the standard of care necessary for collaborative lawyers.     

A Fine Line Between Pleasure and Pain: Would Decriminalising BDSM Permit Nonconsensual Abuse?

The increasing social visibility of Bondage/Domination, Discipline/submission and Sadism/Masochism (BDSM) within Western society has placed pressure on the criminal law to account for why consensual BDSM activities continue to be criminalised where they involve the infliction of even minor injuries on participants. With moralistic and paternalistic justifications for criminalisation falling out of favour, one key justification that is gaining traction within international commentary on BDSM is the “bogus BDSM argument”. The bogus BDSM argument contends that BDSM activities should be criminalised because otherwise false claims of BDSM will be used by defendants to excuse or minimise their criminal liability for nonconsensual abuse. This article refutes this argument by showing how it relies on premises that are unjustifiable, illogical and irrelevant. This article concludes that the decriminalisation of BDSM would not permit nonconsensual abuse so long as legal officials were equipped with sufficient knowledge about the norms and conventions of BDSM culture.

     

Possibilities of the positive following violence and trauma: informing the coming decade of research

The effects of trauma and violence may be better understood by taking a broader perspective that includes resilience and recovery as well as damage and symptomatology. Based on this broader view, this article describes three interrelated, cutting-edge trends in mental health research: (a) the positive psychology movement, (b) the recognition of the role of spirituality and religion in health and well-being, and (c) stress-related growth. The integration of these trends into mainstream studies of trauma and violence will provide a counterbalance to the predominant orientation of victimization and pathology currently evidenced in the literature. All three have important implications for survivors of violence and trauma.     

Interest groups in the criminal justice process

This article reviews recent research about interest groups in criminal justice policy making and considers the state of knowledge in this area. Portions of major studies by Downs, Berk et al., and Berk and Rossi are discussed. These studies came to varying conclusions about the nature and importance of interest group influence. Three points are suggested by the research described: (1) groups composed of criminal justice professionals (law enforcement personnel, corrections officials, attorneys) are more influential than those with social service or reform concerns, (2) particular social, cultural, and economic conditions in the various states affect interest group structure, power, and goals, (3) criminal justice legislation is generally enacted on a consensual basis without open conflicts in state legislatures and without major public involvement in the process. Some evidence that would tend to modify these conclusions is also presented. Avenues of future research concern are suggested and a framework for further analysis of interest groups in the politics of criminal justice is proposed.     

新《保险法》适用环境下中国海上保险制度的完善

修改后的新《中华人民共和国保险法》于2009年10月1日开始生效。针对海运市场的特点和实际需要,就海上保险合同的定义所涉及的投保人与被保险人,海上保险合同的诺成性所涉及的保险费交纳与保单签发,海上保险合同的订立与生效,海上保险格式条款的适用规则,投保人的告知义务,保险人的说明义务等诸问题进行研究,并提出修改中国海上保险制度的若干建议。     

Converging on the Poles: Contemporary Punishment and Democracy in Hemispheric Perspective

In this article I place U.S. punishment trends in comparative context, seeking to show that the contemporary penal regime in the United States resembles patterns of governance prevalent throughout Latin America, the world's most economically unequal region. In both the U.S. and Latin America, I argue, neoliberal reforms have produced societies characterized by ever greater divides between the haves and have-nots, and state criminal justice institutions increasingly position themselves to police this boundary rather than mitigate its effects. In this article, I examine these trends through the lens of wars on crime and terrorism, arguing that in societies polarized between a dwindling set of haves and an ever more numerous (and potentially unruly) group of have-nots, an inexorable pull makes criminal justice institutions more aggressive in their enforcement of class and racial boundaries. Hallmarks include a widening of the criminal justice net (by broadening definitions of criminal activity, for example) and a deepening of the deprivations visited on those ensnared within it. The article concludes with reflections on the need for reconfiguring conceptions of human rights and their relation to security.     

Gender differences in perceptions for women's participation in unwanted sexual intercourse

This article examines the reasons that women and men give in explaining why women willingly agree to sexual intimacy when they would rather not be intimate at that time. Data collected from a sample of students on a southern campus included a set of scales which measured the beliefs about why women consent to unwanted sexual intercourse held by men and women. The findings indicated that most sexual intercourse was consensual and mutually desired. Perceived reasons for consent to unwanted sex by women varied for men and women, as did the ranking of relative importance of the reasons. Some support was found for the contention that compliance might be a function of gender socialization.     

An analysis of the fundamental tensions between copyright and social media: the legal implications of sharing images on Instagram

ABSTRACT

Copyright is inherently intertwined with the development of technology and none more so than the advent of the Internet and sharing technologies. More recently, social media platforms have become the latest challenge for copyright law and policy. This article builds on the literature that recognises the underlying conflict between copyright and social networking sites (SNSs); namely that the basic implication of copyright is the restriction of copying, whereas the ethos of social networking is the promotion of sharing. In particular, this article focuses on the disparity between the restricted acts of copying and communication to the public under copyright law and the encouragement of sharing on SNS Instagram. In doing so, it contextualises the debate surrounding copyright and social media and provides an understanding of the legal implications of using Instagram. As such this paper analyses (1) the infringement of copyright protected work on Instagram, and (2) the user-agreement and licensing of copyright material on Instagram. This study concludes that the disparity between the principles of copyright and social media lead to confusion and vulnerability of users. Therefore, it is suggested that Instagram should better inform its users of the implications of sharing third-party content as well as the terms of its user agreement. This could be done by implementing a copyright strategy, which includes a notice and takedown system as well as investing in producing educational content for users. Perhaps SNSs, such as Instagram might be more motivated to take steps to recognise intellectual property rights if they were considered Internet Services Provides such as YouTube.     

侵权债权在破产程序中的优先受偿顺位建构——基于“给最少受惠者最大利益”的考量

破产法的公平理念以及侵权债权的非自愿属性,决定侵权债权具有从现行破产法所规定的普通破产债权中分立出来,并优先于一般交易债权受偿的正当性。基于侵权债权类型化以及罗尔斯的公平的正义理念——给最少受惠者最大利益,侵权债权在区分人身侵权债权和财产侵权债权的基础上,应做以下受偿顺位安排:破产费用和公益债务之外,人身侵权债权——工资债权和社会保险费用——劳动补偿金债权——财产侵权债权——国家税收——一般交易债权。人身侵权债权甚至有可能优先于担保债权,如果担保债权的设立发生于人身侵权债权产生之后。社会强制责任保险费用债权视其保障范围可以先于人身侵权债权或财产侵权债权。     

Practice and Privilege: Social Change and the Structure of Large Law Firms

Despite dramatic changes in size and specialization, large law firms have remained remarkably unchanged in other respects. Introducing research on major Chicago law firms, this article examines how large law firms have changed so much by changing so little. It proposes a theory of law firm growth emphasizing the relationship between changes in the market for sophisticated legal services and changes in the approach law firms have taken to organizing their practices. The author discusses the organizational structure of large law firms, giving particular attention to the various roles that lawyers play in such firms. After speculating on trends affecting large law firms, he points to implications of these trends for law and social change.