Children's Law: Toward a New Realism

The realist approach that has dominated American jurisprudence has long had especially great acceptance in regard to children's issues. Ironically, however, decision making on such topics has seemed to be particularly unlikely to be informed by careful assessments of social reality. Symbolism has prevailed over pragmatism. Psycholegal research on children's issues has also often been misdirected. Application of the Convention on the Rights of the Child may point the way to more psychologically minded children's law.     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Legal Feminism and Foucault – A Critique of the Expulsion of Law

Contemporary theorists have become increasingly receptive to the selective incorporation of Foucaultian theory within feminist frameworks. However, the reception of Foucault within feminist legal critique has been less enthusiastic. The most celebrated theorist to argue for the incorporation of Foucaultian insight within the feminist analysis of law is Carol Smart. While conceding the significant contribution of her work, this article will argue that her interpretation of the Foucaultian thesis on law is considerably more problematic. Illustrating the extent to which she adopts an unnecessarily pessimistic prognosis for the development of Foucault within legal analysis and reform, this article will examine an emerging counter-interpretation of Foucault that presents the possibility for a more promising application, seeking to provide a defence both of the utility of Foucault for feminist jurisprudence, and of the utility of legal reform strategies being exercised for feminist purposes.     

Toward a Signaling Explanation of the Private Choice of Corporate Law

Corporate actors can choose their corporate domicile and haveconsiderable freedom to choose terms in corporate charters.Although contractarian corporate law literature almost alwaysanalyzes the private choice of corporate law through the lensof agency costs, this article considers the choice for its informationalcontent. A particular law may be chosen by an entrepreneur notbecause it reduces agency costs, but because it signals qualityto outside investors. The article considers the choice of aDelaware domicile. Higher expected litigation costs for relativelylow quality firms that accompany a Delaware domicile could implythat choosing Delaware signals a relatively high quality firm.Alternatively, the size and structure of the franchise tax inDelaware could give rise to a signal of quality from locatingthere. The article considers the ambiguous welfare implicationsof the signaling analysis and the debate over mandatory versusenabling rules in corporate law. It also suggests how the signalinganalysis might apply to the debate over the private choice ofa securities regulation domicile.     

Toward a General Margin of Appreciation Doctrine in International Law?

Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.     

Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change

The role of law in social change has been a subject of many academic debates. However, not much attention has been given to the contradictory ways in which activists for social change justify or criticize the use of law. Drawing on in-depth interviews with 25 social justice activists, I analyze the ways in which activists evaluate the role of law in social change. I find that activists invoke three distinct schemas of evaluation: instrumental, political, and cultural. The instrumental schema emphasizes change in the allocation of concrete resources; the political schema views change as the empowerment of marginalized communities; and the cultural schema emphasizes the transformation of assumptions that are shared by all members of society. Each schema provides activists with a particular order of justification that enables them to justify or to criticize the role of law in social change. While the multiplicity of schemas sustains the commonsense notion of law as a means for social change, it also accounts for possible changes in this notion.     

Right,Crime, and Court: Toward a Unifying Political Conception of International Law

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.     

The Russian mafia: Expulsion of law

The purpose of this paper will be to determine whether the conditions that exist in present‐day Russia are congruent with Foucault's claim that power in modern societies is not ensured by law and punishment but by normalization and control, which go beyond the state and its apparatuses, and that law plays an increasingly subordinate role within contemporary disciplinary society. I will also see what conclusions can be drawn from the Russian‐Soviet case that are relevant to evaluating the paradigms supplied by Foucault in deciphering the modalities of power in the modern world. In what sense can he help us understand how discipline and law in Imperial and Soviet Russia created the necessary conditions for the emergence of the Russian Mafia? Law has been transformed in the hands of the Russian Mafia and has expanded its spheres of influence rather than being displaced. The conditions that exist in present‐day Russia can be applied to Foucault's claim that power in modern societies is not ensured by law and punishment but by normalization and control which go beyond the state and its apparatuses. But it is not the case that law plays an increasingly subordinate role in present‐day Russia. Rather, it is no longer controlled by the sovereign power of the monarchy or by the Soviet state and its apparatuses, but is now predominately controlled by the Russian Mafia.     

"国家-市场"尺度下的反垄断法三十年——迈向"自治-回应"型法

改革开放以来反垄断法的发展可以被划分为市场孕育期、市场建立期和市场完善期三个阶段.其中,"国家-市场"尺度的变化均是反垄断法生成的主导力量.不同阶段的反垄断法实施的焦点有所不同,而其主要的瓶颈在于制度缺失、执行乏力和体系失调.结合伯克利观察法对法律类型的划分.在"自治-回应"型法理念的构设下,<反垄断法>的实施可以有一个理性的预期.     

Corporal Punishment: Examining Attitudes Toward the Law and Factors Influencing Attitude Change

There remains considerable societal support for child corporal punishment, despite much research about its ineffectiveness and potential harm to children. We examined attitudes toward Section 43 of the Canadian Criminal Code which gives parents the right to use reasonable physical force for discipline purposes. We also examined attitude change and predictors of this change. Participants (N?=?212) completed an on-line study, which found that 39.2 % disagreed with ending Section 43. Upon presentation of corporal punishment-related information, the majority (63.8–70.5 %) now indicated being in favor of ending Section 43. Attitude change was highest for information on the potential for child abuse. Socio-demographics (ethnicity, religion), childhood disciplinary experiences (non-punitive discipline), and discipline perceptions (parental warmth/involvement) predicted attitude change. Results indicate that providing information about corporal punishment is key to changing attitudes toward parents’ legal right to its use. Also, parental background and childhood discipline characteristics may differentially influence the amount of attitude change.     

Skull Fracture with Brain Expulsion in a One-Level Jumping-Fall

Abstract:  Here presented is the case of a one-level jumping-fall with extensive skull fractures and brain expulsion. The body was found on the basement floor at the foot of the stairs. At the autopsy, the skull was extensively fractured, with about half of the brain expulsed several feet away from the body. The cause of death was established as a craniocerebral trauma with brain expulsion. The circumstances and manner of death were still unclear at that time. A low fall seemed very unlikely considering the severity of the skull and brain damage. The police investigation clearly revealed that the man, in a paranoid psychotic state, attacked his wife with a knife and then was witnessed by his children to have hit his head several times with a hammer. Afterwards, they saw him running to the top of the basement stairs and jumping to the bottom of the stairs head first.