Abortion laws and medical developments: a medico-legal anomaly in Queensland

In October 2010 the District Court sitting in Cairns, Queensland, found Tegan Leach not guilty of attempting to procure her own abortion and Sergie Brennan not guilty of supplying Leach with the drugs Mifepristone and Misoprostol to procure an abortion. Brennan obtained the drugs from his sister in the Ukraine through the regular postal system. R v Brennan and Leach was the first case in Queensland's history where a woman was charged with procuring her own abortion. The drugs are accepted by the medical profession worldwide for medical abortions. A prosecution witness gave evidence that Mifepristone is not harmful or injurious to the health of a woman and it is listed as an essential medicine by the World Health Organisation and approved for use by the Australian Therapeutic Goods Administration. The jury found the defendants not guilty because they were not satisfied beyond reasonable doubt that the combination of the drugs Mifepristone and Misoprostol was a "noxious" substance under the Criminal Code (Old). This article concludes that there is no regulatory miracle which will stop the traffic of Mifepristone and Misoprostol into Australia and therefore an intelligent regulatory response is required which would make it unnecessary for women to seek Mifepristone and Misoprostol from overseas networks and the internet. Among other things, this would include the repeal of confusing, inappropriate and ineffective abortion laws.     

BOOK REVIEW DEPARTMENT

Book reviewed in this article:
THE TIME-LIFE FAMILY LEGAL GUIDE, Jay Brennan, Fred P. Graham, Berkeley Rice, Don A. Schanche, Carlton Smith, David S. Thomson, Robert G. Wernick, Linda Wolfe and Editors of TIME-LIFE BOOKS.     

The “Central Meaning” and Path Dependence: The Madison-Meiklejohn-Brennan Nexus

Justice William J. Brennan's opinion in New York Times Co. v. Sullivan is widely recognized for many reasons, including, as articulated by Professor Harry Kalven, that it put “the First Amendment right side up for the first time” by identifying its “central meaning.” That meaning is the constitutional protection of speech critical of government and its officials – speech vital in a self-governing democracy. Justice Brennan's approach was derived, in part, from the writings of James Madison, to whom the justice refers generously throughout the opinion, and Alexander Meiklejohn, to whom Justice Brennan gave credit only after the fact. This article examines the philosophical lineage from Madison to Meiklejohn to Brennan, and does so through the lens of path dependence, a perspective that advocates that history matters. A critique of path dependence emerges.     

政治问题理论的衰落与重构

政治问题作为可推翻的"自然推定",属于可诉性理论的阻却事由要件。其理论发轫于联邦党人对宪法"特定条款"的阐述。为了应对将政治问题理论区分为经典形式与审慎形式所带来的司法操作性难题,布伦南大法官通过描述政治问题的六个特征,构建了政治问题的确认标准。然而,法院在适用政治问题确认标准的过程中所形成的政治问题理论的循环悖论,以及学界对政治问题理论存在合理性的质疑使得其经典形式出现变异、审慎形式日渐消亡。在激励相容理论基础上重构政治问题理论,可以尝试化解学界对政治问题免于司法审查理论基础的种种非议。     

COERCION,SOCIAL SUPPORT,AND CRIME: AN EMERGING THEORETICAL CONSENSUS*

Two themes, coercion and social support, have emerged over the past two decades in criminology that can be used to build a new integrated theory of crime. The authors provide a review of recent theoretical developments in criminology to demonstrate that two interconnected themes provide the basis for a new consensus in theory and crime policy. With some important exceptions, coercion causes crime and social support prevents crime. The authors develop a theory of differential social support and coercion that integrates concepts from a broad range of criminological theories. Implications of this integrated theory for public policy are explored.     

Political Liberties and Social Equality

This paper examines the link between political liberties and social equality, and contends that the former are constitutive of, i.e. necessary to secure, the latter. Although this constitutive link is often assumed in the literature on political liberties, the reasons why it holds true remain largely unexplored. Three such reasons are examined here. First, political liberties are constitutive of social equality because they bestow political power on their holders, leaving disenfranchised individuals excluded from decisions that are particularly pervasive, coercively enforced, hard to avoid, monopolistic, and final. Second, they are constitutive of social equality due to their positional value, such that those who are denied such liberties are socially downgraded because and to the extent that others enjoy them. Third, they are constitutive of social equality due to their expressive value, in the sense that, by disenfranchising some individuals, the state publicly fails to recognize their equal moral agency. While unpacking these reasons, we address some criticisms of this constitutive link recently raised by Steven Wall and Jason Brennan.     

SCHOOL BONDING,RACE, AND DELINQUENCY*

While there is considerable evidence that blacks experience school in qualitatively distinct ways from whites, there has been a general failure to examine racial variation in the impact of school variables on juvenile misconduct. The purpose of this research is to describe the manner in which school bonding affects delinquent conduct, focusing in particular on the role of the school in the delinquent involvement of black youths. Our orientation is primarily a control theory one that suggests that the greater the degree of school bonding the lesser the likelihood of involvement in delinquent activities. Our review of the literature leads us to expect differential levels of bonding by race and across varying racial environments of schools, with resulting differential effects on delinquency. On the basis of a neighborhood sample of 942 adolescents, we identijj seven distinct dimensions of school bonding. The analysis reveals that blacks are at least as strongly bonded to the school as whites, that our model explains comparable amounts of variance in delinquency across race-sex subgroups, and that the racial composition of the school is generally unimportant in conditioning the effect of school bonding on delinquency. While our findings are generally supportive of control theory, a model that purports to be invariant across race, gender, and socioeconomic boundaries, we caution that such a conclusion may be both premature and mistaken. We discuss the implications of these findings and suggest that they be interpreted within a framework that also considers family and peer bonding.     

The First Amendment Originalism of Justices Brennan,Scalia and Thomas

Originalism holds that the U.S. Constitution should be interpreted based on the original intent or original meaning of the Constitution, that original intent is not only relevant but authoritative, and that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism's merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes that all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers perspectives on originalism's influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.     

MERGERS, STANDARD OF PROOF AND EXPERT ECONOMIC EVIDENCE

There is an increasing use of complex econometric modellingin EC merger control proceedings. The question is whether econometricsare subject to a standard of evidence similar to that applicableto facts and theories that the Commission traditionally usesand articulates in its merger decisions or whether there shouldbe some margin of discretion left to the Commission in the treatmentand handling of econometric evidence. In the former case, ECcourts would exert an intensive review of the Commission's useand articulation of econometric evidence. In the latter case,EC courts would adopt a rather deferential approach. While theissue has not yet been dealt with before EC courts, this articlesubmits that the Commission should use econometrics with cautionand, hence, should meet a relatively high evidentiary thresholdbefore admitting the results of econometric models into evidence.Several guiding principles of evidence are suggested, whichare not intended to negate the Commission's margin of discretion,but would, nevertheless, ensure that econometrics be subjectto a fairly high standard of proof.     

Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

ETHICAL, LEGAL, AND PROFESSIONAL PRACTICE ISSUES INVOLVED IN ACTING AS A PSYCHOLOGIST PARENT COORDINATOR IN CHILD CUSTODY CASES

The use of Psychologist Parent Coordinators in child custody cases (called Special Masters in California) is becoming increasingly prevalent across the country. This postdivorce parenting coordination role is a legal/psychological hybrid, demanding knowledge and skill in legal domains (legal procedure, relevant case law, etc.), psychological domains (child development, family systems, etc.), and dispute resolution (mediation and settlement processes). Situated in the interface of legal and psychological paradigms, Parent Coordination may be reviewed by multiple legal and psychological regulatory bodies. Coming from varying perspectives, the practice guidelines and mandates of these legal, ethical, and licensing agencies impose multiple standards of review of Parent Coordination. A brief overview of the legal and psychological review processes applicable to Special Master work in California, as they relate to common issues that confront the Parenting Coordinator across the country, is the focus of this article. They suggest that the current lack of coordination of review processes creates a minefield of professional risk for the psychologist who chooses to practice in this role.     

Gresham's law in politics: Why are politicians not the most remarkable men for probity and punctuality?

Economists have always criticized politicians' behaviour. Adam Smith called politicians “crafty and insidious"; and, more recently Brennan and Buchanan have applied Gresham's law to politics, arguing that the man for whom the expected profit is highest will be the highest bidder for political power. However in their model there is not an argument to explain why these people are elected to public offices. This paper presents a supply model and a demand model explaining why politicians behave as “wicked" men, and are elected by the citizens. Firstly, we develop a model of repetitive and reputation games that shows why probity is not important for many politicians. The second model employs asymmetric information theory to explain why voters elect “wicked" people even if probity is a highly estimated value for them. The paper ends with some suggestions of legal reforms for reducing this asymmetry of information. classification D72. D82     

Reviews

Steve Redhead, Unpopular Cultures: The Birth of Law and Popular Culture Paul C. Weiler, Howard H. Hiatt, Joseph P. Newhouse, William G. Johnson, Troyen A. Brennan and Lucian L. Leape, A Measure of Malpractice: Medical Injury, Malpractice Litigation and Patient Compensation Ernest J. Weinrib, The Idea of Private Law     

CHILD CUSTODY MEDIATION AND SPOUSE ABUSE

This article discusses domestic violence, providing information and a review of literature regarding this phenomena. The article then goes on to describe a protocol developed by the Orange County (California) mediation and investigative unit that provides protection to the alleged victim of violence through the use of assessment interviews, co-mediation with a male-female mediation team, and the development of postparenting arrangements that provide for protection and security. The article also reviews a sample of 100 domestic violence cases handled in Orange County during 1991. Data from this research suggest that mediators using the protocols described in this article are able to guide the more serious, high-risk cases into more protective outcomes and that mediation can provide a very important adjunct to the trial court process.     

AGE,PEERS, AND DELINQUENCY*

Hirschi and Gottfredson (1983; Gottfredson and Hirschi, 1990) have argued that the age distribution of crime cannot be explained by any known variables. and they point specifically to the failure of sociological theories to explain this phenomenon. This paper examines a quintessentially sociological theory of crime—differential association—and evaluates its ability to explain the age distribution of crime. Analysis of data from the National Youth Survey on persons aged 11–21 reveals that peer relations (exposure to delinquent peers, time spent with peers, loyalty to peers) change dramatically over this age span, following much the same pattern as crime itself When measures of peer influence are controlled, the effects of age on self-reported delinquency are largely rendered insignificant. Additional analyses show that delinquent friends tend to be “sticky” friends (once acquired, they are not quickly lost) and that Sutherland's arguments concerning the duration and priority of delinquent associations are only partially correct.     

POVERTY, URBANIZATION, AND CRIME

In an effort to evaluate the situational determinants of crime, principal components analysis was used to reduce 59 demographic and socioeconomic characteristics of 840 American cities to six independent factors: affluence, stage in life cycle, economic specialization, expenditures policy, poverty, and urbanization. When regressed upon crime rates two of these six factors, urbanization and poverty, were found to be the more important criminogenic forces. The exception to this generalization was the South, where stage in life cycle was more important than poverty in explaining crime. One reason for this exception may be that the South, though having a lower standard of living than other regions of the country, does not have the “culture of poverty” usually associated with lower income. Contrary to the assumption upon which most ecology of crime studies are based, larger cities (over 100,000 in population) are not representative of all cities. Greater association between socioeconomic variables and crime was found in larger than in smaller cities.     

DETERRENCE,CRIMINAL OPPORTUNITIES,AND POLICE

In this article, we join three distinct literatures on crime control—the deterrence literature, the policing literature as it relates to crime control, and the environmental and opportunity perspectives literature. Based on empirical findings and theory from these literatures, we pose a mathematical model of the distribution of criminal opportunities and offender decision making on which of those opportunities to victimize. Criminal opportunities are characterized in terms of the risk of apprehension that attends their victimization. In developing this model, our primary focus is on how police might affect the distribution of criminal opportunities that are attractive to would‐be offenders. The theoretical model we pose, however, is generalizable to explain how changes in other relevant target characteristics, such as potential gain, could affect target attractiveness. We demonstrate that the model has important implications for the efficiency and effectiveness of police deployment strategies such as hot spots policing, random patrol, and problem‐oriented policing. The theoretical structure also makes clear why the clearance rate is a fundamentally flawed metric of police performance. Future research directions suggested by the theoretical model are discussed.     

EXPENDITURES ON CHILDREN AND VISITATION TIME

In their critique, Garfinkel, McLanahan, and Wallerstein raise concerns about the representativeness of the authors' sample, benchmark approach methodology, and historical review of guidelines, all of which lead them to discount the evidence presented opposing the cliff-model assumption of father expenditures on children, and to laud instead child support guidelines that give little monetary credit or adjustment for visitation. This article presents evidence that (a) this sample is at most little biased, and remains trustworthy for the main implications presented; (b) although only a beginning, the benchmark approach is highly useful and most of the concerns raised about it are ill founded or implausible; and (c) the historical review suggesting that current guidelines assume zero visitation expenses is indeed accurate for the vast majority of states, according to the foremost authority. Thus, notwithstanding the critique, these findings have merit and importance and should be considered by policy makers. The authors also comment on the additional arguments against continuous and generous adjustments for visitation, finding them based on a weak foundation of evidence and reasoning.     

MASCULINITIES,PERSISTENCE, AND DESISTANCE

In life‐course criminology, when gender has been the focus of study, it has predominantly been treated as a variable. Studies that explore the gendered nature of criminal careers through the lived experiences of offenders are rare, even though these studies can make important contributions to our understanding of crime and the life course. Analyzing qualitative data, this article uses life‐history narratives of a small sample of male juvenile delinquents (N = 25), born in 1969–1974, to explore the possible link among masculinities, persistence, and desistance from crime. The findings of the study suggest that processes of persistence and desistance are imbued with age‐specific norms of what it means to “be a man” and successfully do masculinity in different stages of life. Analyzing these gender‐specific practices gives a deepened understanding of processes that underlie the offenders’ lives as they go through stages of continuity and change in crime. The findings of the study further suggest a complex intersection between gendered biographies and gendered structures, with fruitful contributions to life‐course criminology. The implications of these findings are discussed.     

SOLVING THE FAMILY COURT PUZZLE: INTEGRATING RESEARCH,POLICY, AND PRACTICE

In my opening remarks to the 42nd Annual Conference of the Association of Family and Conciliation Courts, I discuss trends in family law cases from the Supreme Court of Washington and the U.S. Supreme Court. I also review the wide variety of advancements in the way that court systems approach family law cases. Noting a recent emphasis on the fundamental rights of parents, I advocate a new paradigm, moving away from a focus on the parents and toward a focus on the child.