Ancillary Relief: Complicating the Search for Principle

Calls have been made for clarification of ancillary relief law in England and Wales. The judicially created objective of fairness is said by many to be indeterminate and to lack a principled foundation. This paper examines judicial discourse in four recent decisions made by the highest courts of appeal and suggests that a principle of equality may be taking shape in the law. It goes on to suggest that while equality is important in ancillary relief, there are both risks and advantages associated with it, given that there is no clear consensus on its meaning either in family life or family law.     

Freedom and choice in constitutional law

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind - freedom, which protect the right to make choices - pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire notion that all persons (including incompetents) are to be treated identically, the instrumental idea that granting freedoms to incompetents achieves extrinsic goals such as training, and the surrogate notion that persons who cannot make choices for themselves should be able to have those closest to them choose on their behalf. Professor Garvey concludes that, when these options fail and the state takes an incompetent person under its control, the state owes to the incompetent the full package of duties owed by other guardians to those under their control, including treatment in the case of the mentally ill or education in the case of children.     

Cause and manner of death among users of anabolic androgenic steroids

Medicolegally investigated deaths among 34 male users of anabolic androgenic steroids (AAS) are described. Nine persons were victims of homicide, 11 had committed suicide, 12 deaths were judged as accidental and 2 as indeterminate. In two cases of accidental poisoning, the levels of pharmaceuticals and illicit drugs were considered too low to be the sole cause of death and AAS was considered part of the lethal polypharmacia. Chronic cardiac changes were observed in 12 cases. In two cases of accidental poisonous deaths, these changes were regarded as contributory cause of death. Homicides, suicides, and poisonings determined accidental or indeterminate in manner were related to impulsive, disinhibited behavior characterized by violent rages, mood swings, and/or uncontrolled drug intake. The observations in the present study indicate an increased risk of violent death from impulsive, aggressive behavior, or depressive symptoms associated with use of AAS. There are also data to support earlier reports of possible lethal cardiovascular complications from use of AAS. Furthermore, a contributing role of AAS in lethal polypharmacia is suggested. Finally, the observations indicate that use of AAS may be the gateway of approach to abuse of other psychotropic drugs.     

浙江省江山市2005—2008年非法行医行政处罚案例分析

为对非法行医现象和行政处罚情况进行分析,从而为做好非法行医查处工作提出建议。我单位通过对江山市2005-2008年共86起非法行医行政处罚案例,从案由、违法主体类别、处罚情况等进行研究。研究结果显示,86例行政处罚中,以农村和城乡结合部为据点,以未取得《医疗机构执业许可证》擅自执业最多,其次是使用非卫生技术人员从事医疗卫生技术工作：主体类别以个体为主;罚款平均为每件次2994元,处罚额度过低。打击非法行医任务重、难度大,社会关注度高,需要加大执法力度,加强部门联动,加快社区卫生服务能力建设和完善合作医疗制度,强化培训,实行责任追究,建议修改相关法律法规,有效打击非法行医。     

论我国私法人分类理念的缺陷与修正——以公法人理论为主要视角

《民法通则》规定的四种法人类型来源于我国单位体制中的单位类型,并非基于公法人与私法人相区分的法律原理。因此,这种私法人的类型化混淆了公法人、公法组织与私法人,缺陷甚多。根据公法人理论,应该将机关、事业单位和几类社会团体法人定位为公法人或公法组织。而未来民法典中的私法人则应分为营利法人和非营利法人两大类型,前者包括公司和非公司企业法人,后者则包括由私人组成的社会团体法人和捐助法人。     

Brain markers and suicide: can a relationship be found?

Recent work suggests that some persons who commit suicide have altered neurochemistry in their brains. It remains unclear which of the many reported abnormalities are most reliably present and whether they reflect a specific psychiatric disorder or a disposition to violent impulsivity. A number of technical and interpretive problems must be clarified, but a postmortem test indicating that a subject was at high risk for suicide may eventually emerge. This approach would not be useful for ruling out suicide, since altered neurochemistry is not likely to be involved in every case.     

共同过失犯罪行为理论研究——兼论行为理论的重构

两人或者两人以上基于相同的过失共同造成损害结果即为共同过失犯罪,但现有的共同犯罪理论和行为理论并不能合理解决这类行为的定罪量刑问题。重构行为理论,将行为理解为"行为人运用一定的主客观条件作用于特定的人或物的存在状态的过程",过失共同犯罪就是行为人之间在相互利用对方行为之际,应当控制而没有控制,最终造成了实际损害结果,所以应当分别按照过失犯罪定罪处罚。     

Deserved Delayed Release? The Communicative Theory of Punishment and Indeterminate Prison Sentences

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

“That's How She Talks”: Animating Text Message Evidence in the Sexual Assault Trial

This ethnographic study of criminal sexual assault adjudication shows how prosecutors, defense attorneys, and witnesses animate text message evidence. In contrast to other forms of courtroom testimony, text messages function as multiauthored representations of recorded correspondence in the past. Attorneys and witnesses animate texts authored by or said to characterize persons represented at trial. By whom and how the texts are animated shapes trial processes. Through a detailed comparative case analysis of two Milwaukee, WI, sexual assault trials, this article attends to the process by which text messages are said to personify or characterize authors’ meaning and intent. This animation of electronically transmitted text speaks to credibility and variably emphasizes a witness's place within gendered and racialized cultural norms. Rather than unsettling the trope of “he said, she said,” text messages become contested evidence animated by court actors within contexts of long‐standing cultural narratives of sexual victimization and offending.     

Illegal gambling businesses & organized crime: an analysis of federal convictions

Illegal gambling operations have been alleged to support organized crime and victimize participants, rather than benefit them. This is said to occur through cheating in the games provided, defrauding the government of tax revenue, and funding other illicit and criminal activities. What has been missing is a systematic analysis of actual cases involving illegal gambling businesses to determine precisely who is involved, how these businesses operate, the nature of the threat posed, and the law enforcement response to it. The analysis reported here examines all federal convictions involving operation of illegal gambling businesses during a single year. There were more than 80 persons charged and convicted of participation in illegal gambling businesses, centered around 40 distinct enterprises. The results indicate that illegal gambling businesses in the United States are long-term operations consisting of four general types, and that enforcement of existing laws, particularly related to illegal online sports betting, are not working effectively.     

American Capital Punishment in Comparative Perspective

It is often said that American capital punishment fulfills no purposes, serves no functions, and possesses no coherent rationale. In Peculiar Institution: America's Death Penalty in an Age of Abolition (2010), David Garland argues that American capital punishment is functional, meaningful, and effective, especially in the cultural realm of death penalty discourse. He also demonstrates that America's radically local version of democracy helps explain why the death penalty has persisted in the United States long after it disappeared in other Western democracies and that many of the peculiar forms through which American capital punishment is now administered have been designed to deny association with the lynchings that have occurred in American history. Garland arrives at these conclusions by comparing capital punishment in contemporary America with death penalty systems from the American past and from other Western nations. This essay argues that comparison with Asia further illuminates what is peculiar—and ordinary—in American capital punishment.     

The impact of disability on partnership formation in Sweden during 1990-2009

ABSTRACT

Evidence suggests that disability negatively affects people’s propensity to find a partner. Persons with disabilities that eventually find a partner do so later in life compared to the average population. There is a lack of studies on the differences in partnership opportunities for persons with disabilities compared to those without disabilities in Sweden. The aim of this study is to assess the impact of disability on partnership formation and to assess whether partnership formation varies as a function of individual demographic and socio-economic factors. We use nationwide data available in the Swedish Initiative for Research on Microdata in Social and Medical Sciences (Umeå SIMSAM Lab). We follow persons born from 1973 to 1977 when they were from 16 to 37 years of age and analyze their data using logistic regression. Our findings indicate that regardless of whether a person started to receive a disability pension at an early age or later, it was associated with lower odds for partnership formation. For persons who started receiving disability pension from 16 to 20 years of age, chances for partnership formation reduced with increase in age of partnership. Individuals that started to receive disability pension later were more likely to form partnership prior to receiving disability pension. Partnership formation was less likely among persons born outside Sweden, in persons with mothers born outside Sweden, in individuals born by unmarried mothers and in persons, whose mothers had a high level of education. Partnership was high among women and among persons who had many maternal siblings. In conclusion, receiving disability pension was associated with reduced chances for partnership formation. Receiving disability pension might imply financial constraints that negatively influence partnership formation supporting Oppenheimer’s theory on the economic cost of marriage and the uncertainty hypothesis.     

Not guilty by reason of insanity: a research note

The question of the insanity defense centers around the moralist-determinist debate. Insanity defense laws are premised on the assumption that individuals choose between right and wrong, and are responsible for that choice. Mental disease, however, can overpower, and thus, not of their own volition, insane persons become out-of-control. Hence, they cannot be held responsible for their behavior or subject to criminal punishment. It is the purpose of the insanity defense, of course, to distinguish between offenders in need of punitive disposition and ones where a medical-custodial disposition is best. The research presented here indicates that defendants who successfully raise the plea of NGRI do not beat the rap. In other words, they do not spend fewer days in confinement via an NGRI plea than had they been convicted and sentenced. Thus, for the reasons of justice, equity, and fairness the insanity defense should be kept intact. The wave of public fear and reaction to the decision in a few highly publicized cases is insufficient grounds for eliminating the plea. Not only is the use of the insanity defense infrequent, but defendants who select it give up important safeguards. Namely, they are unable to plea bargain, are stigmatized as "mad and bad," have no access to probation or parole, and are confined for an indeterminate amount of time. That some would call this leniency we find surprising. And, of course, we should not forget the findings reported here. NGRI acquittees spend more time being locked up. Defendants who successfully raise the NGRI plea are confined until professionals say they are no longer dangerous.(ABSTRACT TRUNCATED AT 250 WORDS)     

The legal Structure of Self-Ownership: Or the Self-Possessed Man and the Woman Possessed

The purpose of this paper is to expound the legal meaning of self-ownership, to examine its internal logic and its applications to both men and women within the two major spheres of human relations. To date, discussion of the self-proprietor has largely been confined to his public manifestation. This paper provides a critical study of the person as proprietor of his person in both his public and private lives. More particularly, it considers whether women, as well as men, can be said to have property in their persons, not only when they are engaged in acts of gainful employment, but also when they enter lawful sexual relations.     

我国公务员制度伦理及其建设

公务员制度伦理是一个全新的概念,它的建设直接影响到公务员制度能否顺畅地运行以及公务员与整个社会的关系能否融洽。本文旨在说明公务员制度伦理的涵义及其建设的重大意义,并构建了我国公务员制度应具有的伦理体系。     

Punishment or treatment?

Although there is strong support among the general public for providing insanity acquittees with mental health treatment, it is also believed that insanity acquittees should be punished when they break the law. Prior studies of the lengths of confinement of insanity acquittees have yielded inconsistent results. This article draws upon a large-scale, multistate study of insanity pleas to explore the question: Is society able to withhold punishment against persons acquitted of criminal charges due to insanity? Results indicate that offense seriousness is a more important factor than mental disorder in determining the lengths of confinement of persons foundNot Guilty by Reason of Insanity and that persons found guilty are more likely to be released without ever having been confined than persons acquited by reason of insanity. Implications for invoking offense seriousness as a primary criterion in assessments of dangerousness are discussed.     

PATTERNS OF DRUG USE,DRUG TRAFFICKING,AND OTHER DELINQUENCY AMONG INNER-CITY ADOLESCENT MALES IN WASHINGTON,D.C.*

This paper examines (1) the relationship between drug involvement among inner-city youths and the commission of other kinds of crime, (2) the role of drug use in crime commission, (3) the connection between crime and drug procurement, and (4) the factors that distinguish between individuals as a function of (a) levels of involvement in drug trafficking and (b) drug usage and criminal activity. Drug use and trafficking were both related to other criminal activities; the type of drug involvement was related to the type of crimes reported. The heaviest users were significantly more likely than nonusers to commit property crimes and drug traffickers were significantly more likely to commit crimes against persons than were respondents who did not sell drugs. Adolescents who used and sold drugs were the most likely to commit crimes against persons and property, and at the greatest rate. Still, for every type of crime reported in the past year, only a minority of offenders reported ever using drugs while committing the crime or said that they committed any type of crime in order to obtain drugs or money to obtain drugs. Most youths appear to commit crime for reasons completely independent of drugs.     

The impact of genetic enhancement on equality

There apparently is a genuine possibility that genetic and non-genetic mechanisms eventually will be able to significantly enhance human capabilities and traits generally. Examining this prospect from the standpoint of equality considerations is one useful way to inquire into the effects of such enhancement technologies. Because of the nature and limitations of competing ideas of equality, we are inevitably led to investigate a very broad range of issues. This Article considers matters of distribution and withholding of scarce enhancement resources and links different versions of equality to different modes of distribution. It briefly addresses the difficulties of defining "enhancement" and "trait" and links the idea of a "merit attribute" to that of a "resource attractor." The role of disorder-based justifications is related to equality considerations, as is the possibility of the reduction or "objectification" of persons arising from the use of enhancement resources. Risks of intensified and more entrenched forms of social stratification are outlined. The Article also considers whether the notion of merit can survive, and whether the stability of democratic institutions based on a one-person, one-vote standard is threatened by attitude shifts given the new technological prospects. It refers to John Stuart Mill's "plural voting" proposal to illustrate one challenge to equal-vote democracy.     

Patterns of Ecchymoses Caused by Manner of Death and Collateral Injuries Sustained in Bruising Incidents: Decedent Injuries,Profiles, Comparisons,and Clinicopathologic Significance

Abstract: We investigated how ecchymoses could be used to predict other injuries, or help establish the cause of death. Ecchymoses, fractures, lacerations, abrasions, and other data were recorded. Eleven percent of decedents had ecchymoses. Motor vehicle accident by car (MVA‐C) was the most common cause of ecchymoses and showed the most collateral injuries. Decedents of natural causes were more likely to have ecchymoses without collateral injuries. There appeared to be two groups of decedents with ecchymoses: one group is younger, comprised of victims of MVA‐C and homicides, with more injuries related to ecchymoses than others; another is an older group of victims of other accidents, natural causes, and suicide. There were no indeterminate causes of death among decedents with ecchymoses. Therefore, ecchymoses may be a surrogate marker to direct the pathologist to continue to seek a cause of death should be seen, even if the case, otherwise, appears to be indeterminate.