Customary Rights in Scots Law: Test Cases on Access to Land in the Nineteenth Century

Rights of access to land in Scotland for community and public use became increasingly politicised in the nineteenth century. In test cases brought by both landowners and access campaigners, they were subject to determination by the Court of Session. This article examines the doctrinal developments in the area of customary rights in nineteenth-century Scotland, and the legal and political context in which those doctrines emerged. The decisions were made against a background of reaction against the abuse of privileges by burgh governors and superiors, on the one hand, and the movement for greater public access to land on the other. It is argued that the judges of the Court of Session based their decisions, in part, on judicial values regarding the value of test case litigation and the constitutional function of the court, as well as the sanctity of private property.     

Access to justice

Conclusion The central aim of providing access to justice should be to ensure that every citizen receives implementation of his legal rights at the lowest overall cost, not just the cost to litigants, or the courts' budget, or insurers, but to society as a whole. How far the proposals in the Report will achieve that will have to be seen when they are implemented, whether in whole or in part. Although the proposals are radical in many ways, it is certainly possible to argue that on one construction they merely preserve the present distinction between small claims, County Court, and High Court cases, with a variety of significant modifications. If that be so, it is equally arguable that very much the same result could be achieved by modifications to both the County Court and High Court rules without the need for universal sweeping changes. Certainly all practitioners and judiciary are going to find that the next few years are full of challenge and interest. It will be fascinating to observe the changes and the outcome. Q.C., M.A., LL.M. (Cantab), J.D. (Chicago), one of Her Majesty's Circuit Judges since 1987. The opinions expressed in this article are purely personal to the author and should not be attributed to any other member of the judiciary.     

Fatal suicidal crossbow injury--the ability to act

We report a case of a 58-year-old man who committed suicide using a modern crossbow. The victim shot himself in the chest with a conical field-tip arrow from close proximity. We first presumed that this was a case of homicide committed with a firearm. We were, however, subsequently proved wrong. The reasons for the primary statement were as follows: the external morphology of the entrance wound being typical of a firearm discharged from long distance; the perforation found on the victim's clothing; the absence of the firearm at the place of death; the absence of the arrow in the wound. All of these reasons forced us initially to conclude that the case was one of homicide. In the reported case, the man, after having been shot with an arrow, was further able to act, even though the abdominal aorta and liver were seriously injured. While the arrow was in the wound, the injuries may not have led to massive bleeding because of incomplete tamponade of the defects by the arrow shaft. Pulling the arrow out of the victim's wound track initiated massive bleeding. Despite all these injuries, the man was capable of pulling the bow string again and reloading the crossbow with the arrow used in the first attempt. This case demonstrates that forensic investigations into crossbow injuries can be very difficult, especially when the bolt has been removed from the body.     

Broadcasters' response to the children's television act

The Children's Television Act of 1990 (CTA) represents the culmination of more than 25 years of controversy and debate about the public policies needed to insure that broadcasters provide adequate service to the child audience, consistent with their public interest obligations. In approving the Act, the Congress expected to accomplish significant increases in the educational and informational programming available to children on broadcast television. How well has this law worked to achieve that goal? This study seeks to answer that question by examining the children's programming reports contained in recent license renewal files submitted to the Federal Communications Commission (FCC).     

公民的司法参与权研究

公民享有司法参与权是人民主权的有力体现,也是公民实现政治参与的重要途径。宪法和相关法律为公民的司法参与权提供法律依据,正当程序和司法民主理念则是公民司法参与权的法理基础。我国公民司法参与权的表现形式多种多样且范围十分广泛,但我们仍需要通过增加诉权的宪法保障、规范细化陪审制度和人民监督员制度等途径予以完善,以保障公民司法参与权的实现。     

Access to state-held information

China-EU Law Journal - On the basis of different cases of the ECHR regarding freedom of information and its scope of protection; this article analyses the individual right for access to state-held...     

业主区分所有之相邻权研究

建筑物区分所有权除了专有权、共有权、成员权之外,还应当包括相邻权。地役权和相邻权的制度设计具有不同的法律价值,不能以地役权代替相邻权。传统相邻权在现代社会中已经突破了"相邻权为不动产所有权内容的当然的扩张或限制"的范围。业主区分所有之相邻权的内容包括:人格保护相邻权、环境保护相邻权、物上请求权之于相邻权。     

Access to expensive anti-cancer drugs

Expensive anti-cancer drugs expose controversy underlying the process for resource allocation decisions, and intermittently result in marked publicity, emotive discussions about access to novel and expensive treatments, and political involvement which may override existing processes. This column outlines the methods of determining whether or not a treatment is considered appropriate to fund, and focuses upon the evidence of patient and doctor wishes. The existing research illustrates the complexity of patient and oncologist decision-making when these drugs are to be considered. Past litigation to obtain access to expensive treatments is discussed, along with the interactions between patients, pharmaceutical companies, health services and oncologists. This evolving field is being transformed by developments in molecular biology enabling targeted drugs, and amply demonstrates the complexity of funding decisions and how expensive treatments are considered by a range of stakeholders.     

走近论题学法学

伯尔曼对西方法律传统的描述,并未细致地揭示11世纪之前西方古代法学在知识论和方法论上的特征。不可否认的是,近代大学体制不仅打造了一个"以学术为生"、专事学问研究的知识群体,而且也铸造了一种追求逻辑形式主义的科学精神,但是,"经院派"以及以后的"公理方法派"法学家们的做法,实际上遮蔽了古老的法学作为一门法的实践知识的性格。古代的论题学体现了这种性格,它将法学的论辩活动带入到了更复杂、更可靠、更贴近人类社会生活现实的思考结构之中。     

无线电频谱资源使用权的开放性设计

我国传统上僵化的频谱监管没有确认无线电频谱使用人的民事权利,不利于电信市场的竞争和技术创新。而《物权法》对于无线电频谱国家所有权的规定混淆了"民法之物"和"公物",背离了频谱使用权开放性的改革方向。应当将频谱资源所有权界定为公法所有权,进而将经行政许可获得的频谱使用权确认为准物权,准用民法规范,允许其自由交易,合理设计其取得、期限、内容以及效力,从而增强频谱资源利用的开放性和灵活性,鼓励投资和竞争,激励创新。     

To act or not to act, that is the question: informed consent in a criminal perspective

Some years ago the doctor was seen as the one who "knows better", and it was absolutely unconceivable that the patient could refuse the suggested treatment or even ask any questions about it. Differently, nowadays doctors face demands to keep their patients informed and can even be sued when they act without patient knowledge and consent. On the patient's side this new paradigm does not necessarily legitimate euthanasia--still criminally forbidden in most parts of the world--but allows some kind of personal power over body, health and life, materialized in advance directives. On the doctor's side, it entails a change in the list of good medical practices, imposing the doctrine of informed consent and the prohibition of dysthanasia.     

集体建设用地向宅基地的地性转换

法律要求和实践需求提出了宅基地和集体建设用地之间地性转换的改革命题。集体建设用地向宅基地的地性转换,是突破制度制约和摆脱观念羁绊的改革举措,具有重要的政策价值和实践意义。地性转换有其伦理基础和历史基础,集体建设用地和宅基地的规范构造亦为地性转换奠定了制度基础。从实践发展来看,地性转换具有间接性、模糊性和非正式性的特点,可以划分为自发自为阶段、严格管制阶段、“三块地”改革阶段和新一轮改革阶段,其中蕴含了值得挖掘利用的制度资源,可以为未来发展提供启发和参考。地性转换应坚持底线思维,坚持以人为本,坚持节约集约利用集体建设用地,尊重基层实践,突出分类施策,注重改革协同。我们可以从地.性转换的决定主体、内容和程序等方面明晰其制度要点,为实现农民户有所居的改革目标提供理论方案。