WILLIAM H. REHNQUIST AWARD ADDRESS

The William H. Rehnquist Award is one of the most celebrated judicial honors in the country. ¹ It is given each year to a state court judge who demonstrates the "highest level of judicial excellence, integrity, fairness, and professional ethics." ² The 2004 recipient, Judge Leonard Edwards, is the Supervising Judge of the Santa Clara County, California juvenile dependency court. ³ He is the first juvenile court judge to receive this prestigious award. During the 24 years he has held his position, Judge Edwards has worked extremely hard to improve how the juvenile court system serves troubled families. He has founded two organizations to achieve this end, the Juvenile Court Judges of California and the Santa Clara County Domestic Violence Council. ⁴ Judge Edwards serves as a lead judge in San Jose's Model Court, which is one of twenty-five jurisdictions in the country which utilizes new ideas and techniques to improve adoption rates for children in foster care. ⁵ Moreover, he has worked as president of the National Council of Juvenile and Family Court Judges. ⁶ Below is the speech he gave after accepting the award from U.S. Supreme Court Justice Anthony M. Kennedy. The speech notes the importance of the award to everyone working in America's juvenile courts.     

Compensation for Commercial Agents

This note examines the decision of the House of Lords in Lonsdale (t/a Lonsdale Agencies) v Howard & Hallam Limited ¹ where the House of Lords were asked to rule on the correct method to be applied when calculating the compensation of commercial agents ² under Regulation 17 of The Commercial Agents (Council Directive) Regulations 1993 ³ (the Regulations). This ruling settles this aspect of the law in England and Wales after almost fifteen years of legal and commercial uncertainty on the matter.     

WHO'S ON FIRST: CERCLA COST RECOVERY, CONTRIBUTION, AND PROTECTION

I told him it was law logic - an artificial system of reasoning, exclusively used in courts of justice, but good for nothing anywhere else. ¹     

Preventing Secondary Victimisation Through Anonymity

This note examines the decision of the Court of Appeal in R (Gazette Media Company Ltd) v Teesside Crown Court ¹ where the Court was asked to rule on the legality of an order under s.39, Children and Young Persons Act 1933 purporting to ban the identity of the victim and defendants in a prosecution. The facts of the prosecution are set out below but the interesting issues that arise from this decision come not so much from the facts and decision (which was, to an extent, inevitable) but rather from the fact that the current law does not, in our opinion, adequately protect children from secondary victimisation and that the courts have erred in their current understanding of the legal position.     

'Talking in Fictions': Jennings on Parliament

Sir Ivor Jennings made many ground-breaking contributions to the study of Parliament. Among them are two books written in the 1930s, while Jennings was at the peak of his powers: Parliamentary Reform in 1934, ¹ and Parliament in 1939. ² This essay offers an assessment of Jennings' scholarship on Parliament. It commences with some observations on his method, and this is followed by an outline of the argument in Parliament and an appraisal of the book's originality and ongoing significance. The essay closes with some brief remarks concerning Jennings' Parliamentary Reform .     

Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error

The purpose of this paper is to investigate the feasibility of claims for psychiatric damage following the death of a family member, where that death has been caused by medical error. ¹ The relative's position is a subject of heightened interest since the exposure of the plight of the parents involved in the UK organ scandal, ² and in the case of an iatrogenic death it is, of course, the family who are essentially the focus of the law's attempts to provide redress. Whilst the cases of deceased patients' relatives seeking damages for mental harm are inherently problematic in light of the restrictive secondary victim criteria applicable to psychiatric damage claims, a close look at the rules which permeate this area of compensation reveals that denying compensation to the relative suffering psychiatric harm is difficult to sustain. ³     

Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

THE WRONG WAY TO MANDALAY: THE MASSACHUSETTS SELECTIVE PURCHASING ACT AND THE CONSTITUTION

The United States cannot and should not approach the world as fifty states and thousands of municipalities who embark on setting their own foreign policy whenever it suits them. ¹
It's a core principle of democracy that the federal government should not intrude on state powers to spend local tax dollars unless there's an overwhelming federal interest at stake. ²     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

JUVENILE CRIME AND WHY WAIVER IS NOT THE ANSWER

Many states deal with the issue of juvenile crime by charging juveniles as adults. This is done by a method of waiver. Waiver allows adult criminal courts to have the power to exercise jurisdiction over juveniles.¹ In effect, a juvenile is tried and sentenced as an adult when his or her case is waived (removed) from the juvenile court to the adult court. Waiver in juvenile (youths seventeen and younger) cases should never be allowed because juvenile offenders are too immature and incompetent to appreciate the nature of their crimes and because the juvenile justice system is a more appropriate place to rehabilitate juvenile offenders.     

The Stable Isotope Ratios of Marijuana. II. Strontium Isotopes Relate to Geographic Origin

Abstract:  Effectively addressing marijuana trade is aided by understanding marijuana geographic sources. We analyzed the ⁸⁷Sr/⁸⁶Sr of marijuana samples grown in 79 counties across the United States to determine if a primary geologic signal is retained in marijuana, which could therefore be useful for geographic sourcing. The marijuana results were compared with modeled bedrock ⁸⁷Sr/⁸⁶Sr values based on ⁸⁷Rb decay rates and a generalized geologic map of the U.S.A. A significant correlation was observed between marijuana ⁸⁷Sr/⁸⁶Sr and modeled bedrock ⁸⁷Sr/⁸⁶Sr. Although values clustered near the 1:1 relationship, there was a predominance of positive anomalies, perhaps attributable to carbonate bedrock. A small number of negative anomalies were also observed, which were generally associated with granitic bedrocks. These results suggest that strontium isotopes in marijuana record the geographic origins of marijuana, and that refinement of the base strontium map (or strontium isoscape) and improved understanding of other strontium sources would be productive.     

Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman

Within the English-speaking world, H.L.A. Hart (1907–1992) is regarded as the twentieth century's foremost legal philosopher. He revived the moribund discipline of jurisprudence, reorientating it so that the qualities associated with analytical philosophy in the second half of the twentieth century² were applied to the investigation of the most fundamental concepts of law and to major public issues, notably, the complex relation between law and morality. As a colleague, teacher, mentor, and author, he exercised a profound influence, an influence that extended to the 'real world' and 'real issues'. From the late 1950s onwards, he championed a new humaneness in punishment, speaking and writing for a right to abortion and against the death penalty and the prosecution of people because of their sexual preferences. His exploration of the balance between the modern welfare state and individual liberty - in particular, the legitimate use of state power to impose standards of private morality -produced an eloquent and highly influential manifesto for modern political liberalism. As Tony Honore, his close colleague at Oxford, put it,'He was the most widely read British legal philosopher of the twentieth century and his work will continue to be a focus of discussion.³     

A PREVIOUSLY UNIMAGINABLE RISK POTENTIAL: SEPTEMBER 11 AND THE INSURANCE INDUSTRY

The attacks [of September 11 th] have revealed a previously unimaginable risk potential. ¹     

CHILDREN'S LAWYERS IN CALIFORNIA FAMILY LAW COURTS

There simply is no dos-and-don'ts checklist that will address the myriad issues facing children's attorneys and eliminate the difficult questions that face them. Conscientious lawyering is the key to alleviating potential ethical culpability. This requires the commitment of significant time to learn about the child client and his or her special needs. Unique responses are often required to meet individual problems. Beyond that, attorneys for children are left to determine their own subjective criteria to guide their representation.¹
The child is a person, not an object of concern.²     

WINE WARS—DIRECT SHIPMENT OF WINE: THE TWENTY-FIRST AMENDMENT, THE COMMERCE CLAUSE, AND CONSUMERS'RIGHTS

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. ¹     

Medical Malpractice Implications of PSA Testing for Early Detection of Prostate Cancer

The best defense against malpractice is—as any good lawyer will attest—the best care to the patient, honestly and sensitively communicated.¹     

NEW APPRAISALS OF OLD PROBLEMS: REFLECTIONS ON THE DELAWARE APPRAISAL PROCEEDING.

A review of this testimony clearly shows that testimony as to value by experts is of such limited use to a trier of fact. Vice Chancellor Hartnett ¹     

INTEGRATIVE SOCIAL CONTRACTS THEORY: ETHICAL IMPLICATIONS OF MARKETING CREDIT CARDS TO U.S. COLLEGE STUDENTS

It may be said that to take advantage of a man's credulity, to exploit his misapprehensions, to capitalize on his ignorance is morally reprehensible—and this may well be the case I do not know.—Nicholas Samstag in The Engineering of Consent ¹     

THE REVENGE OF THE TRAIL SMELTER: ENVIRONMENTAL REGULATION AS EXPROPRIATION PURSUANT TO THE NORTH AMERICAN FREE TRADE AGREEMENT

[N]o state has the right to use or permit the use of its territory in such a manner as to cause injury … in the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. ¹
Under the polluter pays principle, the community effectively "owns" the environment, and forces users to pay for damages they impose. By contrast, if the community must pay the polluter, the implicit message is that the polluter owns the environment and can use and pollute it with impunity. ²