The color of law: an economic theory of legal boundaries

This paper presents an economic theory of property, tort, and contract law based on the goal of efficiently governing economic exchange relationships. In the theory, legal boundaries emerge endogenously in response to exogenous differences in the nature of the underlying transaction concerning the possible existence of unforeseen or non-contractible contingencies, and/or the desire of one of the parties to make non-salvageable investments prior to trade. The analysis asks whether, in this context, the transaction is best governed by property, tort, or contract principles. The conclusions are illustrated by a discussion of several cases that occupy the “boundaries” between the various areas.     

从普通法与大陆法的比较看中国法制改革

离开了对本国法律制度进行重大的改进和提高,中国经济要想获得持续、健康、全面的增长是很困难的。中国之所以可以在法律制度并不健全的条件下开始经济发展,是因为中国经济主要依靠国有企业和出口。国有企业在与其商业伙伴发生纠纷时,可以依靠和政府的关系来保护它们的利益。那些外国企业在同这些企业做生意时,可以依靠中国政府树立一个信守承诺的良好声誉的愿望,正式的法律制度相对并不是那么重要。这些都是经济发展早期阶段的通常特征——企业依赖名声、政府的影响以及其他的非正式机制来防止商业伙伴欺骗或不守合约。然而随着经济的增长,…     

Popular legal participation in China and Japan

The purpose of this paper is to examine two contrasting styles of the mixed-court system in China and Japan and investigate the extent of their civic legal participation in both nations. In 2004, Japan passed the Quasi-Jury Act to introduce a system of popular legal participation in criminal trials, where defendants have their guilt and sentence determined by a judicial panel of both professional and lay judges. In the same year, the Standing Committee of the Chinese People’s Congress also promulgated the Resolution about the Improvement of the Lay Assessor System in 2004 (the Lay Assessor Act in 2004²) to revise the system of popular participation in law. The act was designed to correct the defects of the lay assessor system that have been sharply criticized by the Western observers for their lack of institutional effectiveness, minimizing the use of lay assessors, pointing at lay assessors’ participatory incompetence and passivity, and disapproving of insufficient funding, among others.There has been, however, little study critically examining the effectiveness of the revised system under the Lay Assessor Act in 2004 in China. In Japan, the first ever quasi-jury trial began in August 2009, but its quasi-jury system suffered from a lack of publicity and insufficient public knowledge about the system, thereby creating the wide-spread public reluctance, or even strong resistance, to participate in the system.The present research is an attempt to shed both theoretical and empirical light on the effectiveness of popular legal participation in these two powerful jurisdictions in East Asia. As both nations are working to adopt a democratic system of popular legal adjudication, this study will provide important clues to measuring the nations’ commitment, as well as the success or failure of the respective governments’ efforts, to democratize their systems of popular participation in legal decision-making.     

Status and practices of the legal text

Translated by Isabelle Llasera from Statut et pratiques du texte juridique, in D. Bourcier and P. Mackay (eds.),Lire le droit. Langue, texte, cognition (Paris: Librairie Générale de Droit et de Jurisprudence, 1992).     

Authentic assessment in contract law: legal drafting

Legal drafting is a vital skill for lawyers and thus it is important for law students to be exposed to drafting throughout their degree. One of the first year courses most suited to this exercise is contract law. This paper discusses the inclusion of a drafting exercise as part of the contract law assessment over four years in terms of the authenticity of the assessment task and feedback from students about the exercise. A sample exercise is included in the paper. These exercises required students to draft clauses to be inserted into a contract or draft a short contract and this work demonstrated an application of the material being covered in class. Initially, this assessment was set as a largely independent exercise with students being directed to relevant resources. It was found that additional scaffolding was needed and each year more extensive resources were provided. Although the students who participated in the survey were predominantly students who had passed the course, the majority each year believed that it was a useful exercise, of value for their future careers and of more practical relevance than other forms of assessment.     

Recent legal developments European law

EMPLOYMENT LAW HANDBOOK: AN ADVISOR'S HANDBOOK By TAMARA LEWIS [Legal Action Group, 2005, 6th ed., 739 pp., £28.00 (paperback)]

EMPLOYMENT TRIBUNAL CLAIMS: TACTICS AND PRECEDENTS By NAOMI CUNNINGHAM [Legal Action Group, 2005, 396 pp., £25.00 (paperback)]

DISCRIMINATION LAW: TEXT, CASES AND MATERIALS By AILEEN MCCOLGAN [Hart Publishing, 2005. 2nd edn., 757 pp., £25 (paperback)]

FAMILY LAW AND FAMILY VALUES Edited By MAVIS MACLEAN [Hart Publishing, 2005, 342 pp., £22.00 (paperback)]

TRUSTS AND EQUITY By NIGEL STOCKWELL and RICHARD EDWARDS [Pearson Longman, 2005, 7th edn., 556 pp., £29.99 (paperback)]

HAYTON AND MARSHALL: CASES AND COMMENTARY ON THE LAW OF TRUSTS AND EQUITABLE REMEDIES By DAVID HAYTON and CHARLES MITCHELL [Sweet &; Maxwell, 2005, 12th edn., 985 pp., £32.95 (paperback)]

MODERN INTELLECTUAL PROPERTY LAW By CATHERINE COLSTON and KIRSTY MIDDLETON [Cavendish Publishing Ltd., 2005, 2nd ed., 808 pp., £35.95 (paperback)]

INSURANCE LAW: DOCTRINE AND PRINCIPLES By JOHN DOWRY and PHILIP RAWLINGS [Hart Publishing, 2005, 2nd edn, 447 pp., £25.00 (paperback)]

MASON &; MCCALL SMITH'S LAW AND MEDICAL ETHICS Edited By KENYON MASON and GRAEME LAURIE [Oxford University Press, 2005, 7th ed., 774 pp., £21.99 (paperback)]

LEGAL CONUNDRUMS IN OUR BRAVE NEW WORLD By BARONESS HELENA KENNEDY QC [Sweet and Maxwell, 2004, 57 pp., £17.95 (paperback)]

CRIMINAL LAW By CATHERINE ELLIOTT and FRANCES QUINN [Pearson Education, 2006, 6th ed. xxvi + 420 pp., £22.99 (paperback)]

DRUGS, ADDICTION AND THE LAW By LEONARD JASON‐LLOYD [ELM Publications, 10th ed., 232 pp., £29.95 (loose‐leaf with updating service)]

THE VIOLENT WORKPLACE By P. A. J. WADDINGTON, DOUG BADGER and RAY BULL [Willan Publishing, 2006, xii + 204 pp., £25.00 (hardback)]

ENVIRONMENTAL LAW By J. THORNTON and S. BECKWITH [Sweet and Maxwell, 2004, 2nd ed., 447 pp., £24.95 (paperback)]     

The role of serendipity in legal education: a living curriculum perspective

This article evaluates the challenges of modular redesign and the potential contribution of serendipity in legal education by advancing a “living” curriculum model. The archaeology of the curricular redesign process is excavated by exploring the conditions influencing and constraining curricular redesign. Whilst this study is primarily located within the theoretical context of curricular redesign, it is also rooted in both the practice of law and higher education literature. A key concern of this research is to consider the under-explored interaction between serendipity and curricular design with a particular focus on how the surrounding serendipitous conditions proved timely and welcome in creating an unanticipated opportunity for such redesign. There remains a surprising dearth of research evaluating the influence of serendipity in legal education generally and, more specifically, with respect to the challenges of module redesign and delivery. This article uncovers a research agenda with themes concentrated on the role of serendipity in curricular design and how “real world” relevance can be incorporated into module redesign and delivery. It is suggested that serendipity-sensitive curricula which acknowledge current debates within law and the contemporary contexts within which law operates enhance students’ capacity to recognise the relevance and applicability of their legal knowledge. By remaining alert to the potential for serendipitous innovation in curricular redesign and by re-engineering curricula to facilitate serendipity, legal academics can enhance the incorporation of “real world” relevance into academic teaching.     

Navigating the minefield: legal ethics and healthcare law

Practicing law in the healthcare field is a daunting task due to the highly-regulated nature of the field and the increasing scrutiny of the conduct of industry providers, payors, and vendors. Attorneys must provide difficult opinions regarding matters with civil, criminal, and reimbursement implications and often are asked to represent multiple parties in healthcare-related settings. This article discusses some legal ethics issues for the healthcare practitioner and touches on some of the recent changes to the Model Rules of Professional Conduct, which were adopted by the American Bar Association's House of Delegates at its mid-February 2002 meeting. The authors conduct their analysis by applying the model rules to a number of hypothetical fact situations typical of those encountered in the day-to-day practice of healthcare law.     

The boundaries of law and the purpose of legal philosophy

Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legal philosophy and outline its implications for the kind of issues that should be pursued. Assistant Professor, University of Warwick School of Law. The Essay was presented in the Oxford Jurisprudence Discussion Group. I thank participants there for their comments.     

也论法条竞合犯

一、法条竞合犯的特征 在我国刑法理论上,一般无"法条竞合犯"的称谓,而只有"法条竞合"(又称法规竞合、法律竞合)的概念.这是因为,我国刑法学者普遍认为,法条竞合是揭示刑法不同条文(款)所规定的犯罪构成要件在内涵和外延上有重合交叉关系的一个概念,说明的是刑法分则体系的某种特殊结构,法条竞合不是一种犯罪形态.但正如有的学者指出,任何犯罪形态都是一种法律现象,最终都要涉及适用法条定罪量刑的问题,法条竞合犯说明实际发生的犯罪行为,如何具体触犯相互竞合的法条,是从动态的角度揭示刑法分则内部条文的实际联系[1].因此,"法条竞合犯"范畴的提出具有积极意义,在罪数形态中研究法条竞合犯也是十分必要的.