Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.     

Comparative law as a remedial subject*

Abstract

Situated learning, focusing on the pragmatic and social aspects of learning, has as its basis the notion that learning is essentially dependent on the immediate situation of action. It is a strength of the theory that it supports learner‐centred instructional design (ID), and supports a constructivist approach to ID. Nevertheless, even a learner‐centred theory such as situated learning requires more if its product is to be successful in facilitating learning. Student learning requires management at every level: within individual learning activities, within a module syllabus and within a curriculum. The contextual issues which go to make up such management, and the relations between situated learning theory and learning management, are the focus of this paper. We shall argue that it is essential for the success of embedded IT that instructional designers pay attention to learning management issues, that they signal the presence of these issues in their courseware documentation, and that lecturers and tutors who use the courseware should take these issues into account when implementing and embedding computer‐based learning in the curriculum.

As an example of this argument we take our computer‐based learning program the Virtual Court Action. This program was designed to be used in the learning and teaching of procedural law in a Scottish university law curriculum. Using document assembly techniques and email, this program emulates part of a civil court action in a Scottish court, with identical personnel, legal documents and procedure. The place of situated learning theory in its design is described, and the learning management issues germane to its implementation are analysed. Finally, we show how the attention paid to learning management issues contributed to the success of the program.

‘Acting on the world to learn about concepts is not a straightforward issue.‘¹

‘Old‐fashioned pocket knives … have a device for removing stones from horses’ hooves. People with this device may know its use and be able to talk wisely about horses, hooves and stones. But they may never betray ‐ or even recognise ‐ that they would not begin to know how to use this implement on a horse.‘²     

Patent first, ask questions later: morality and biotechnology in patent law

This Article explores the U.S. "patent first, ask questions later" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on "anything under the sun made by man," and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created "moral utility" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not "useful." The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the "patent first" approach, and considers the benefits and disadvantages of the "ask questions first, patents later" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.     

论反垄断法执法主体的设置——从执法权分配角度分析

市场经济的核心在于维护一个公平有效的竞争机制。而反垄断法因其在保护、促进竞争和维护市场秩序方面起着基础和统领作用．被誉为“经济宪法”。徒法不足以自行，光有一部精良先进的法律条文是不够的，还得通过法的实施．方能实现法的效果。在法律实施机构之间划分执法权．是法律实施体制中其他制度运行的前提，对于法律的有效实施有着重要的意义。本文主要从执法权划分角度探讨反垄断法实施体制中执法主体的设置，以及执法机构与行业监管机构在反垄断监管领域内的关系，通过比较国外的法律规定及实践，并对我国实施不久的《反垄断法》进行评述．综合分析中国现有反垄断执法主体执法权分配中存在的问题，进而提出完善我国现有反垄断执法主体体制的建议一     

关于环境法调整对象的新思考--对"人与自然关系法律调整论"的质疑

一、问题的提出 法律作为人类社会的理性规范,是在人类社会进入了一定的历史阶段才产生的,根据某种论断,人类社会在未来的某一历史阶段也许不再需要法律规范的存在.果真如此的话,那么,法律规范就只能是人的创造物,是同人类的某一个特定的历史阶段联系在一起的.这样看来,法律作为人类的创造物,是属于人类社会和服务于人类社会的,它的全部功用都在于调整人类的社会关系.     

论附条件法律行为之条件拟制的立法完善

附条件的法律行为作为行为人分配风险与计划将来的重要手段,在实践中并不罕见.这里所附的条件作为不确定的事实必须是因自然进程而发生或不发生的:而在现实生活中,因条件的成就或不成就而受利益或不利益的当事人,极有可能以不正当的行为促成或阻碍条件的成就或不成就,即构成条件成就与不成就的拟制.时此,我国<合同法>已作出规制,本文正是从我国对条件拟制的立法现状出发,结合国外的相关立法例,具体解析了条件拟制的构成要件,对<合同法>第45条第2款中涉及到的相关概念作以明晰;并且提出了我国在未来民法典中应当采取何种立法模式的建议,以期能达到更好的对条件拟制行为进行规制、更有效的保护相对人之利益的目的.