Theorizing waste in abortion and fetal ovarian tissue use.

This article explores the theoretical implications of the concept of waste as it specifically relates to arguments in favour of fetal ovarian tissue use as a source of donor eggs. The author begins by discussing medico-scientific constructions of women's reproductive bodies as wasteful. The article explores the works of Drucilla Cornell on bodily borders, Julia Kristeva on abjection, and Mary Douglas on pollution to develop a nuanced understanding of the relations between waste, women's reproductivity, and abortion in North American mainstream and medico-scientific cultures. This layered reading of waste and abortion deconstructs a significant assumption of arguments in favour of fetal ovarian tissue use as ethical--that such tissue is just "waste." The author suggests that theorizing waste this way may contribute to ethical analyses of uses of other reproductive materials (that is, embryos) that are supported, in part, by an assumption that those materials would otherwise be "wasted."     

Embryonic discourse: abortion, stem cells and cloning

This Article interprets the debate about abortion and the debate about embryonic research and therapeutic cloning as aspects of a larger history of ideas. The Article suggests that embryos increasingly stand for different truths in discourse about abortion on the one-hand and about embryonic stem cell research and therapeutic cloning on the other. More specifically, the Article suggests that the contemporary debate about the meaning of the embryo in the context both of abortion and of embryonic research bespeaks a widespread transformation in Western, and especially American, society during the last three or four decades. At base, that transformation involves displacement of an understanding of personhood, particularly in domestic settings that depended on the submersion of individualism with an understanding of personhood that values autonomous individuality and that envisions community as the consequence of individuals' distinct choices rather than as a pre-existing, hierarchically structured whole.     

自愿承受风险原则研究

自愿承受风险在美国侵权法中是被告可以主张的绝对抗辩.以自愿承受风险原则的发展历程为线索,对自愿承受风险的起源与发展、自愿承受风险的各种形态以及比较过失制度对自愿承受风险的影响进行介绍与评析,揭示了自愿承受风险原则在美国侵权法中所经历的沉浮与变迁.     

Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

Undue influence in the context of medical treatment

It is argued that the application of the doctrine of undue influence to patient's decisions in the context of medical treatment is ripe for development. The doctrine is capable of providing much needed protection for vulnerable patients if developed along lines suggested by its use in other contexts. Unfortunately, the Court of Appeal has recently missed an opportunity to develop the law in this way and it may be some time before another suitable opportunity is presented to the courts.     

The Contrived Defense and Deterrent Threat Doctrines: A Reply to Professors Finkelstein & Katz

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction.     

Applying the Responsibility to Protect to the ‘Arab Spring’

The doctrine of the responsibility to protect, since its inception in the ICISS report of 2001, has been the subject of considerable discussion. Arguably its most publicised component is the principle that the international community has the responsibility to protect civilian populations against severe suffering where the relevant national authorities are unable or unwilling to do so. Consequently, the main focus of discourse upon the responsibility to protect has centred on its impact upon the approach of the international community to intervention in respect of situations posing considerable humanitarian crises. The events of the Arab Spring, in which full blown conflict in some states gave rise to serious human suffering, provided a real opportunity for the international community to evaluate the role of the responsibility to protect in decision-making over responding to such instances, and potentially to develop it into a practical and meaningfully implementable concept. However, due to political flaws inherent in the doctrine, and its arguably overstated significance, the doctrine at best played a minimal role in guiding the international response to developments in the Arab World. Nonetheless, responses to the Arab Spring do allow certain conclusions to be drawn in respect of the future relevance of the doctrine.     

自冒风险规则研究

自冒风险源自罗马法,无论在普通法系还是大陆法系,都已接受为过失侵权的抗辩事由：尽管我国立法没有相关规定,却已有法官依据自冒风险规则判决的案例,这很危险。因此,深入研究自冒风险理论,阐述其构成要件、适用范围等,为构建我国的自冒风险规则立法、消除既有法律障碍提供理论基础是论文的立意所在。     

Technology and the legal discourse of fetal autonomy

The relationship between society, medicine, and the law is multi-faceted and complex. This Article examines the process of, and the influences on, the construction of fetal personhood in the legal discourses in American and Commonwealth case law and statutes. It demonstrates how the physical and visual separation of the fetus, as made possible by medical advances, has influenced the development of legal doctrine relating to the rights of the fetus.     

Private benefit, joint ventures, and the death of healthcare as an exempt purpose

The private benefit doctrine has become the IRS' main policing tool for tax exemption in healthcare. The IRS' modern interpretation of private benefit has clearly become the major limitation on exempt status. This Article begins by tracing the common law origins of this doctrine and how it became such an integral part of the IRS' analysis. Next, the author looks at policy issues regarding alternative analysis to the private benefit doctrine in cases of joint ventures between healthcare providers and for-profit investors. Finally, Professor Colombo questions the expanded use of this doctrine, arguing that in its current form it has no sound legal or policy under-pinnings.     

As easy as A, B and C: will A, B and C v. Ireland be Ireland's wake-up call for abortion rights?

This article examines the development of Ireland's abortion policy from 1861 to the present day. It explores the reasoning for this policy as well as the inherent problems with this policy. It examines in detail the A, B and C v. Ireland judgement and its impact, (if any) on Irish abortion law. Finally, it discusses the margin of appreciation doctrine used by the European Court of Human Rights in deciding cases of a moral nature.     

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.     

论人格财产不适用善意取得

物权法上的善意取得制度一般只适用于体现纯财产利益的财产,人格财产作为一类兼具人格利益和财产利益的特殊财产具有独特的法律属性,从充分地保护人格财产所彰显的人格利益和精神价值考虑,其不能适用善意取得制度。但人格财产若因各种原因丧失了人格利益或者人格利益已降低为次要利益,则其与普通财产无异,可在符合善意取得各项要件时予以适用。     

Legal abortion: the impending obsolescence of the trimester framework

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the abortion right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.     

Criminal and Procedural Fairness: Some Challenges to the Presumption of Innocence

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the POI from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness.     

论公司有限责任制度

公司有限责任制度的核心是公司责任与公司成员责任的分离,股东作为投资者无须对公司的债务承担除了其投资之外的进一步的责任。该制度的建立与发展对调动潜在投资者投资的积极性、发展规模经济、促进公司法律制度完善等方面功不可没。有限责任制度有其客观存在的价值,但并非十全十美,这主要表现在该制度被不当利用而对债权人和其它利益相关者造成的损害,实践中各国多采用有限责任制度例外适用来补救该制度之不足。由于历史原因,我国公司有限责任制度的设立和实施存在诸多问题,必须采取必要的措施完善我国的有限责任制度。     

On Incompetent Monks and Able Urbane Nuns in a Buddhist Monastic Code

Most modern scholars seem to assume that Buddhist monks in early India had a good knowledge of Buddhist doctrine and at least of basic Buddhist texts. But the compilers of the vinayas or monastic codes seem not to have shared this assumption. The examples presented here are drawn primarily from one vinaya, and show that the compilers put in place a whole series of rules to deal with situations in which monks were startlingly ignorant of both doctrine and text. One of these examples is particularly interesting for what it suggests about the linguistic sophistication of nuns, and another because it presents a case in which a nun is required to fill an important liturgical role in public and in the presence of monks.     

Vice and virtue of the Basic Structure Doctrine: a comparative analytic reconsideration of the Indian sub-continent’s constitutional practices

This paper examines the doctrine of Basic Structure and its effect upon the development of constitutional jurisprudence on the Indian sub-continent, i.e. Bangladesh, India and Pakistan. It also analyses the courts’ robust underpinning on the doctrine that puts ‘an embargo or a limit upon the parliamentary supremacy’. Such an embargo or a limit is at times seen as a fundamental one which eventually led practical application. Since this position provokes huge controversy, e.g. illegitimacy, anti-democracy, judiciocracy, counter-majoritarianism, anathema to popular sovereignty, non-textual and abstract formulation, etc., it fairly requires doctrinal expositions to be made on how to figure it out. Moreover, it explores the scope, standing and inviolability of the doctrine in the sense of comparative conceptualization. Furthermore, dissection from multifarious perspective is made in order to look into its pragmatism, justification and legitimacy through fixing its today’s position in the ongoing debate among the contemporary constitutional commentators.     

Life and death before birth: 4D ultrasound and the shifting frontiers of the abortion debate

The development of 4D ultrasound technology has democratised fetal imagery by offering direct visual access to realistic images of the fetus in utero. These images, which purport to show a responsive being capable of complex behaviour, have renewed debate about the personhood of the fetus and the adequacy of current abortion regulation. This article considers recent abortion law reform initiatives in the United Kingdom and the United States and observes two shifts in the frontiers of these debates. The first concerns a shift from viability to sentience as a criterion of legal significance. The second concerns a shift toward constructing abortion in terms of feticide as distinct from the termination of pregnancy. Both strategies seek to deploy morphological similarities between the sentient fetus and newborn baby as a basis for extending law's dominion over the fetus.