Native American Identity and the Limits of Cultural Defence

This article concerns itself with the phenomenon of the cultural defence as it exhibits itself in the US juridical context. Recent socio-legal discussions about this phenomenon reveal three prevalent positions: the illegality of cultural defence on constitutional grounds, the necessity of cultural defence as a matter of discretionary justice, and the intermediary position of working cultural defence into a legal doctrine. By problematizing the operative concept of culture, the author suggests that the idea of cultural defence should be understood in terms of foreignness. This suggestion is supported on the basis of the phenomenological theory of the alien (xenology). In order to illustrate the juridical limits of the cultural defence I examine the history of constructing the Native American as a cultural legal subject. Hence the question that primes this examination: is there a possibility of the traditional cultural defence for the American Indians? After a provisional answer that there is no such possibility, I conclude with the discussion of hospitality as a way to an ethically necessary and legally acceptable idea of culture.     

Shopping and fishing: where claims of confidentiality meet demands for disclosure

Where a public interest defence is raised, for example by anewspaper, to rebut an assertion by a claimant alleging breachof confidence, and the defence is not purely speculative, theclaimant has to give disclosure in relation to the defence,subject to the search for documents not being disproportionate.     

建立控辩协商程序与完善检察官自由裁量权

在未来《刑事诉讼法》的修订中,借鉴外域“辩诉交易”制度,建立起具有中国特色的“控辩协商”程序,已经得到学界和司法实务界的认可。“控辩协商”程序的设立和运行与检察官自由裁量权的行使具有不可分割的关系,应该以外域实施辩诉交易制度需要的检察官自由裁量权为参照系,进一步丰富和完善我国检察机关自由裁量权的内容,为建立和实施控辩协商程序提供制度上的支持。     

新刑法对正当防卫制度的修改评析

本文比较了我国新旧刑法典关于正当防卫制度的规定,对正当防卫制度修改之处进行了评析,提出了修改的成功与与不足之处。经过修改,正当防卫的概念更趋规范、科学;放宽了正当防卫的限度条件,有利于人民群众同违法犯罪作斗争;确立了无限防卫权,强化了公民的正当防卫权,同时也埋下了公民防卫权滥用的隐患。     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

Diminished responsibility: the difference it makes

Should there be a defence of diminished responsibility after the mandatory life sentence for murder has been abolished? This is the main question posed in this article, on the basis of a review of the central features of the defence and its surrounding forensic context. The views of the defence taken by the Law Reform Commissions of New South Wales and New Zealand are then compared. In conclusion, it is argued that opinions about the continuing validity of the defence of diminished responsibility are bound to be influenced by wider positions taken on the value of rules, as opposed to discretion, in the criminal law.     

The defence of therapeutic privilege in Australia

Therapeutic privilege is a defence that excuses a medical practitioner or other health professional from complying with the requirements of full disclosure to a patient in circumstances where it is reasonably considered that such disclosure would be harmful to that patient's health or welfare. Although the concept originated in the United States, the defence has been applied in Australia, and was specifically endorsed as part of Australian law by the High Court in Rogers v Whitaker (1992) 175 CLR 479. However, there has been negligible application of the defence since that endorsement. This article examines the doctrine of therapeutic privilege in the present Australian medico-legal environment. After an examination of the concept and its three constituetent elements, the article canvasses the limited instances of judicial approval of the defence prior to Rogers v Whitaker. The author then analyses, by reference to reported and unreported case law, why the defence has been so narrowly interpreted since, such that it has come to occupy an almost untenable position in Australia's medical jurisprudence.     

欧盟最新贸易救济工具绿皮书的内容及启示

随着经济全球化进程的加快及其发展程度的深入,欧盟贸易救济工具不仅事实上损及消费者、进口商和零售商的利益,引发了贸易救济领域"公共利益保护危机",而且,贸易救济权的滥用,也使得许多已将生产基地转移至欧盟之外的本土名牌企业深受其害。最近,欧盟发布贸易救济工具绿皮书,试图化解矛盾、革新贸易救济政策,客观上也给包括我国在内的产品出口国进一步谋求公平贸易环境带来了契机,当前,理性分析并深刻领会绿皮书出台的背景、内容及其精神实质,拿出行之有效的对策,对于最大化、最优化地争取和保护我国相关企业的贸易利益意义重大。     

Killing in defence of property

This article comprises a study of several approaches by member states of the Commonwealth on the question of when, if ever, it is permissible to kill in defence of property. Arising from this study, the suggestion is made that the law should recognise a right to apply fatal force where the danger includes a combination of a threat to property and to the person. Furthermore, the law should recognise a partial defence to murder where excessive force has been used in defence of property.     

Self-Control in the Modern Provocation Defence

Most recent discussion of the provocation defence has focusedon the objective test, and little attention has been paid tothe subjective test. However, the subjective test provides asubstantial constraint: the killing must result from a provocationthat undermines the defendant's self-control. The idea of lossof self-control has been developed in both the philosophicaland psychological literatures. Understanding the subjectivetest in the light of the conception developed there makes fora far more coherent interpretation of the provocation defence.It also makes clear just how radical various proposals for reformof the defence would be.     

Assessing evidence and testing appropriate hypotheses

It is crucial to identify the most appropriate hypotheses if one is to apply probabilistic reasoning to evaluate and properly understand the impact of evidence. Subtle changes to the choice of a prosecution hypothesis can result in drastically different posterior probabilities to a defence hypothesis from the same evidence. To illustrate the problem we consider a real case in which probabilistic arguments assumed that the prosecution hypothesis “both babies were murdered” was the appropriate alternative to the defence hypothesis “both babies died of Sudden Infant Death Syndrome (SIDS)”. Since it would have been sufficient for the prosecution to establish just one murder, a more appropriate alternative hypothesis was “at least one baby was murdered”. Based on the same assumptions used by one of the probability experts who examined the case, the prior odds in favour of the defence hypothesis over the double murder hypothesis are 30 to 1. However, the prior odds in favour of the defence hypothesis over the alternative ‘at least one murder’ hypothesis are only 5 to 2. Assuming that the medical and other evidence has a likelihood ratio of 5 in favour of the prosecution hypothesis results in very different conclusions about the posterior probability of the defence hypothesis.     

Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control

In October 2010, provocation was abolished as a partial defence to murder in England and Wales. Through the introduction of the Coroners and Justice Act 2009, a new partial defence of loss of control was implemented. This sought to overcome problems associated with the provocaton defence and the gendered operation of the law of homicide, particularly in relation to male‐perpetrated intimate homicides, and the inadequate response of the law to the contexts in which battered women kill. This article first provides an account of these developments, and then examines legal stakeholders' perceptions of them. Drawing from in‐depth interviews with criminal justice professionals, it considers their perceptions of the operation of the law of homicide during a period of transition, specifically considering the formulation of the new partial defence, the initial effects of its implementation, and the significant differences between the Law Commission's recommendations and the reforms implemented by the government.     

The “quiet revolution” in criminal defence: how the zealous advocate slipped into the shadow

The criminal defence lawyer has been an integral component of adversarial criminal justice in England and Wales for nearly three centuries. However, over the last two decades this essential role has changed substantially, affected by a changing culture in the law and procedure governing criminal justice in this jurisdiction. This article argues that the criminal defence role has been pulled away from its traditional adversarial roots through a process of subtle and gradual change, pursued by the Government and the Judiciary. The article outlines a normative framework, entitled the ‘zealous advocate’ model, describing the ‘traditional’ role of the criminal defence lawyer; discusses ethical conflict and its growing significance; and examines how legislation, case law and funding have gradually moved the defence lawyer away from a ‘client-first’ style of representation. It concludes by considering the potentially significant implications of such a change in the role for both fair trial rights and adversarialism in England and Wales.     

Organisational change and innovation system dynamics: the reform of the UK government defence research establishments

Since the end of the Cold War, ministries of defence in Europe and the United States have sought new models for the management of government defence research laboratories. The United Kingdom’s reform and subsequent privatisation of its government defence research establishments (GDREs) represents one of the most radical policy responses. This paper considers the UK case through the lens of innovation systems theory and uses defence labs reform to examine the impact of organisational change on the dynamics of an innovation system. The potential policy implications for the management of government defence research laboratories are also considered.

Politics, Theory and Institutions: Three Reasons Why International Criminal Defence is Hard, and What Might be Done About One of Them

The defence is at a disadvantage compared to the prosecution at most stages of the criminal process. I will discuss three classes of difficulties faced by the defence – theoretical, political and institutional – and suggest what might be done about at least the last of them.     

Calculating likelihood ratios for a mixed DNA profile when a contribution from a genetic relative of a suspect is proposed

This technical note describes a practical method for evaluating evidence in the case of a two person conditioned DNA mixture where the defence proposition is that the unknown contributor is genetically related to the suspect. A conditioned mixture is one where the presence of DNA from one of two individuals is accepted by both prosecution and defence. A typical example would be a vaginal swab in an alleged rape case, where the presence of the complainant's DNA would be expected and samples have been taken from the complainant and a suspect. Much has been written about the interpretation of such mixtures and the calculation of the conditional genotype probabilities that must be carried out. In general, such treatments assume that the unknown contributor, under the defence proposition, is unrelated to the known individuals. In this paper, we consider the case where the defence proposition is that the unknown contributor is genetically related to the suspect. We describe a method, incorporating a flow chart and reference tables that facilitate manual calculations of the likelihood ratio for several postulated genetic relationships.     

Attribution and the Illegality Defence

In Jetivia SA v Bilta (UK) Ltd (in liquidation) all seven judges of the Supreme Court affirmed the decision of the Court of Appeal by holding that the illegality defence could not be raised as a defence against the claim made by the company because the wrongdoing of the directors and shareholder cannot be attributed to the company. Although all the judges unanimously agreed on the outcome of the case, their reasoning concerning the approach to attribution and the different circumstances under which attribution should or should not take place differed. Further, the Supreme Court was divided on the issue of the correct approach to the illegality defence.     

Article 81 is a defence to a plea of trade mark infringement

The Court of Appeal in Sportswear considered the interactionbetween the EU principle of free movement of goods and respectfor trade marks rights. In overturning the decision of Mr JusticeWarren to strike out an Article 81 defence to trade mark infringement,the court found that there was a sufficient nexus between theArticle 81 defence and the trade mark infringement claim.     

Woodcock v Cumbria Primary Care Trust: The Objective Justification Test for Age Discrimination

This note discusses the limits to the defence of objective justification when applied to direct age discrimination, specifically with regard to situations where the employer attempts to rely on cost‐saving as a legitimate aim. The author examines the jurisprudence of the Court of Justice of the European Union (formerly the European Court of Justice, ECJ) on which this case relies, and considers whether the defence has been interpreted too widely, opening up the possibility of cost‐saving as a defence to discrimination on the grounds of this particular protected characteristic. The note concludes that, while cost‐saving cannot be the sole justification for less favourable treatment by employers, it may nevertheless form part of an overall legitimate aim when coupled with additional factors.     

'Innocent infringement' and the Community unregistered design right: the position in the UK and Ireland

Legal context and Key Points: This article systematically examines ‘innocent infringement’—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers ‘innocent infringement’ in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates ‘innocentinfringement’ affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify ‘innocent infringement’offers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of ‘innocent infringement’on liability and financial remedies is important.