Can no-fault compensation of impaired infants alleviate the malpractice crisis in obstetrics?

In 1987, Virginia initiated no-fault compensation for birth-related neurological injuries in an attempt to ensure the availability of malpractice insurance for the state's obstetricians. This paper explores some possible causes for the refusal of Virginia's insurers to write malpractice coverage for obstetricians and analyzes the ability of the act to resolve the medical malpractice crisis in obstetrics. It also examines the effect of this limited no-fault compensation scheme on obstetricians' incentives and on the welfare of neurologically damaged children.     

Bad medicine: prescription drugs, preemption, and the potential for a no-fault fix

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs' lawyers alike.     

浅淡离婚损害赔偿问题

修改后的《婚姻法》增加了很多新的内容,其中离婚损害赔偿问题,就是一个值得人们普遍关注的焦点问题。本文主要从离婚损害赔偿概述、离婚损害赔偿的范围、适用条件、举证责任及无过错责任的认定、离婚损害赔偿的数额及赔偿方式、建立和完善离婚损害赔偿制度的必要性等几个方面展开论述,力求通过本文来提高人们对此问题的理解与关注,为司法实践提供一定的参考。     

Chasing the Dragon: trust assets caught by the divorce courts

The recent Court of Appeal decision in Charman v Charman [2007]EWCA Civ 503 provides the latest analysis of the courts' approachin apportioning assets in ‘big money’ divorce casesand pays particular attention to the treatment of assets settledinto offshore trusts.     

知识产权侵权归责原则研究——兼与无过错责任论者商榷

知识产权侵权归责原则是知识产权法理论研究中一个十分重要的问题.我国学术界和实务界对这一问题的认识存在分歧,其中一种突出的观点是主张无过错责任原则.这一观点的产生存在一些特定的缘由.作者主张知识产权侵权归责应实行过错责任原则,并在考察侵权行为法、知识产权法相关原理的基础上对实行过错责任原则的理由进行论证,对无过错责任论提出质疑.     

A provisional typology of lawyer attitudes towards divorce practice

To test the proposition that attorneys in divorce may be classified into distinctive types, 46 members of the Family Law Section of the New Jersey State Bar Association completed a 61 item Lawyer Role Questionnaire (LRQ). The LRQ assessed attitudes regarding goals of and obstacles to a constructive settlement, sources of professional satisfaction, usefulness of mental health professionals, and general attitudes towards divorce and divorce clients. The modal responses on the LRQ portrayed the attorney as a fair, but tough-minded professional, primarily concerned with the welfare of children and ensuring equity. Factor analysis identified four principal attitudinal components of the LRQ: aPsychological factor, anAdvocacy factor, aSocial Work factor, and aClient as Problem factor. Hierachial cluster analysis utilizing the mean factor scores yielded two highly distinguishable attorney subgroups:Counselors (n=24), oriented to psychological and interpersonal issues and disinclined towards the use of adversarial tactics, andAdvocates (n=22), with the reverse orientation. Two subclusters of these main groups were also identified:Gladiators (n=4), with a strongly combatative stance and a highly negative attitude toward the client, andJourneymen (n=10), best characterized by their lack of enthusiasm for any of the dimensions popular with the other types. The results correspond well to the previous, but scanty, literature on lawyer dispositions. Methodological and conceptual issues raised by the study are considered and the possible relationship between lawyer type and the process and outcome of settlement negotiations is discussed.An earlier version of this paper was presented at the meeting of the American Psychology-Law Society, Baltimore, Maryland, October, 1979.     

Evolutionary psychology and the origins of justice

Justice defines our discipline in both name and substance; yet its origin is a neglected topic. I explore the origins of the human “sense of justice” from the perspective of evolutionary psychology. My thesis is that the human sense of justice is a biological adaptation in the fullest sense of the word: That is, an evolved solution to problems faced by our distant ancestors. I explore the role of reciprocal altruism and of “cheating” and cheater detection as exerting pressure for the selection of moral outrage in our species. Moral outrage leads to the desire to punish, which serves an expiatory role. This punishment can be tempered with mercy by tapping into the evolved emotions of empathy and sympathy as cultural ideas defining all human beings as intrinsically valuable. Reconciliation and reintegration as contained in restorative justice are also examined from this naturalistic perspective. I conclude by exploring how cultural variability can be accommodated.     

Temperance and the origins of the new penology

This article discusses the nineteenth century origins of indeterminate sentencing and discretionary penology. Was this idea an offshoot of contemporary positivist criminology, emanating from Europe, or was it a separate development in the United States? It is argued that although European influences were felt, the “new penology” was clearly an American product. However, it did not derive either from new insights in social science, or from simple reforming zeal. Rather, the new penology is seen here as an outgrowth of the contemporaneous temperance movement, which in turn resulted from social and ethnic conflict. The article suggests that the temperance movement was central to the evolution of discretionary penology, and crucial in keeping these ideas alive until the new positivism made itself felt. In summary, the temperance movement is seen as a vital, through understudied, force in the evolution of the twentieth century justice system in the United States.     

Identifying the origins of welsh local government reform

Although those within Welsh local government circles were aware that the Welsh Office was considering restructuring local government as early as December 1990, the first the general population knew of the proposed changes was in June 1991. It was in that month that the Welsh Secretary produced a consultation paper entitled The Structure of Local Government in Wales. ¹ This advocated the introduction of unitary authorities throughout Wales. The publication of this consultation paper was at the same time as those for Scotland² and England.³ This gave the impression that Wales was merely following events in England and Scotland. Such an assumption remains widespread. In the first part of his article ‘Legislating for Wales ‐ Local Government (Wales) Act 1994’ Paul Griffiths indicated that the local government changes in Wales were unplanned and perhaps unintended and a reaction to changes occurring in England.⁴ This article aims to shed more light on the background behind Welsh local government reform. It indicates that the changes in Welsh local government were more a matter of coincidence than merely a mirror of those happening elsewhere. It also argues that the changes in Wales have their own unique Welsh origins, and that the changes may well have occurred, regardless of what happened in the rest of the United Kingdom.     

Political protection and the origins of the Gulf Cartel

The history of drug trafficking in Mexico appears to be strongly influenced by specific features of the post-revolutionary authoritarian regime that has been characterized by its rampant corruption and poor levels of accountability. This is a rigorous empirical case study of state domination of the relationship with traffickers in a particular historical epoch and place. Based on research conducted through the examination of historic sources, this work explores the hypothesis that some political figures might have been colluding with members of criminal organizations, with the aim of protecting their businesses and fostering their consolidation. Such collusion has hindered the institutional functioning of key law enforcement and judicial institutions in the country. The present analysis considers these relationships in the course of three decades, the 1960s through the 1990s, and focuses on the Mexican state of Tamaulipas, where one of the most powerful and dangerous organized crime groups emerged, the so-called Gulf Cartel.