“Jurisdictional Realization of Law” as Judicium: A Methodological Alternative,Beyond Deductive Application and Finalistic Decision

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a (normativistic-positivistic) syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism(s) of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy.

     

Identification and Individualization of Lophophora using DNA Analysis of the trnL/trnF Region and rbcL Gene

Lophophora williamsii (peyote) is a small, spineless, greenish‐blue cactus found in Mexico and the southwestern United States. Ingestion of the cactus can result in hallucinations due to its content of mescaline. In the United States, L. williamsii is classified as a Schedule I controlled substance. In this study, we use DNA analysis of the chloroplast trnL/trnF region and chloroplast rbcL gene to identify the individuals of Lophophora. Using the rbcL gene, Lophophora specimens could be distinguished from outgroups, but species within the genus could not be distinguished. The trnL/trnF region split the Lophophora genus into several groups based on the length and substructure of an AT‐rich segment of the sequence. Our results indicate that the genetic variability at the trnL/trnF locus is greater than previously recognized. Although DNA structures at the trnL/trnF region and rbcL gene do not align with the classification of Lophophora species, they can be used to aid in forensic analysis.     

Monetary Costs of Gender and Ethnicity Disaggregated Group-Based Offending

Research on criminal careers has examined distinct longitudinal patterns of offending across unique trajectories of offenders and a recent study has linked the costs of criminal offending imposed by these unique trajectories, with a specific focus on chronic offenders. In this study, we use longitudinal data from the Second Philadelphia Birth Cohort Study to examine the extent to which the monetary costs of crime across distinct trajectories of crime vary across both gender and ethnicity. Results indicate that male adolescent-peaked and low and high-rate chronic offending impose substantial costs, and the average costs imposed on society by one male high-rate chronic offender is greater than 1.5 million. Although female chronic offending is rarer, these female offenders still impose greater than1.5 million. Although female chronic offending is rarer, these female offenders still impose greater than 750,000 in costs on average. African-American chronic-offending costs the most of any racial/ethnic trajectory group at greater than 1.6 million on average for each chronic offender. Hispanic chronic offending on average costs slightly more than1.6 million on average for each chronic offender. Hispanic chronic offending on average costs slightly more than 200,000, and low-rate White offending costs greater than $100,000 on average. Costs also appear to peak at different ages for males and females and for African-Americans, Hispanics, and Whites. Policy implications and study limitations are also discussed.     

Single Nucleotide Polymorphism Assay for Genetic Identification of Lophophora williamsii*

Lophophora is a member of the Cactaceae family, which contains two species: Lophophora williamsii and L. diffusa. Lophophora williamsii is an illegal plant containing mescaline, a hallucinogenic alkaloid. In this study, a novel method based on a single nucleotide polymorphism (SNP) assay was developed for identifying L. williamsii; this assay reliably detects SNPs within chloroplast DNA (rbcL, matK, and trnL-trnF IGS) and was validated for identifying Lophophora and L. williamsii simultaneously. The chloroplast DNA sequences from four L. williamsii and three L. diffusa plants were obtained and compared using DNA sequence data from approximately 300 other Cactaceae species available in GenBank. From this sequence data, a total of seven SNPs were determined to be suitable for identifying L. williamsii. A multiplex assay was constructed using the ABI PRISM^® SNaPshot™ Multiplex Kit (Applied Biosystems, Forster City, CA) to analyze species-specific SNPs. Using this multiplex assay, we clearly distinguished the Lophophora among 19 species in the Cactaceae family. Additionally, L. williamsii was distinguished from L. diffusa. These results suggest that the newly developed assay may help resolve crimes related to illegal distribution and use. This multiplex assay will be useful for the genetic identification of L. williamsii and can complement conventional methods of detecting mescaline.     

The Winds of Change Blow Again: The World Trade Organisation's Impact on the European Community's Common Agricultural Policy

This paper examines the legal relationship between the World Trade Organisation'sAgreement on Agriculture and the European Community's Common Agricultural Policy (CAP), in light of the reopening of the WTO Agricultural Negotiations in the Millennium Round. It also examines the impact of the Uruguay Round Agreement on Agriculture, on the Mac Sharry reforms of the CAP. An in depth study of the EC's Cereals Common Organisation is included. This revised version was published online in August 2006 with corrections to the Cover Date.     

Effect of Sex Offenders Treatment Program on Cognitive and Emotional Characteristics of Mentally Ill Sex Offenders

This study assessed the effect of a 10‐week cognitive behavior treatment program in 30 mentally ill sex offenders. The effect of the program was evaluated using the Interpersonal Responsiveness Index (IRI), UCLA Loneliness Scale (UCLALS), Coping Using Sex Inventory (CUSI), and Rape Myth Acceptance Scale (RMAS). Data were analyzed using the paired t‐test. The ability of sex offenders to cope with sexual acts when they faced stressful situations and to accept the rape myth was significantly improved on CUSI (t = 2.09, p = 0.04) and RMAS (t = 5.45, p < 0.001). Feelings of isolation and the ability to empathize based on IRI (t = 0.62, p = 0.54) and UCLALS (t = 0.88, p = 0.38) were not significantly improved. To prevent recidivism, treatment for mentally ill sex offenders should focus on changes in their cognitive and emotional characteristics in addition to their main psychiatric illness.     

Caremark Compliance for the Next Twenty‐Five Years

One of the most influential cases in corporate governance is In re Caremark International Inc. Derivative Litigation (Caremark). In 1996, Caremark imposed a novel duty on boards of directors to make a good faith attempt to implement and exercise oversight over obligations leading to liability. Breach of this minimal duty has been difficult for plaintiffs to plead and prove, and the case law is littered with dismissed Caremark lawsuits. As Caremark's reign reaches a quarter‐century, however, its duties are primed to evolve. Two cases, Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation, took the rare step of allowing Caremark claims to survive motions to dismiss. These cases signal a new understanding of Caremark obligating boards not merely to attempt oversight, but to ensure proactively that such oversight is effective. This subtle but significant change in board duties is one to which the academic literature should respond. This article first reviews the Marchand and Clovis cases and argues that these cases hold significance for the future of Caremark claims. Second, this article studies client advisories from law firms and other sources that evaluate the Clovis and Marchand cases. It finds that while these advisories offer useful tactical responses, they lack strategic advice that would benefit boards over the long term. Filling the gap, this article presents long‐term strategic advice for boards not only to meet Caremark duties but also to thrive as exemplars of good governance and ethical leadership for the next twenty‐five years.     

‘Wayward Girls and Wicked Women’: Two Centuries of ‘Semi-Penal’ Control

This paper explores the way in which unruly or `deviant' women have historically been subjected to various strategies and mechanisms of control, designed to regulate and reform them back to the acceptable and appropriate standards of femininity from which they were perceived to have strayed. In particular the way in which `semi-penal' institutions were utilised for this purpose is examined. It is argued that `semi-penal' institutions such as refuges, reformatories and homes, occupied a unique position within the social control continuum, somewhere between the formal regulation of the prison and the informal control of the domestic or communal sphere. What made them particularly unique was the way in which they managed to combine both formal and informal methods of control in order to produce feminising regimes, aimed at reforming recalcitrant women into respectable, gendered subjects. In addition, these institutions had the effect of `widening the net' of control for women, establishing an all-encompassing system of surveillance which was at once punitive and reformative. To facilitate this analysis, five groups of women have been identified; prostitutes, criminals, the `wayward', inebriates and the `feeble-minded'. The specific methods utilised to control and reform each of these groups will be discussed along with the themes of continuity which serve to synthesize the history of the treatment of such women. This revised version was published online in August 2006 with corrections to the Cover Date.     

Effectiveness of Femur Bone Indexes to Segregate Wild from Captive Minks,Mustela vison,and Forensic Implications for Small Mammals

Utilization of free‐living populations of endangered wildlife species is usually strictly prohibited or restricted. Farming of endangered species can provide products that are in demand as a countermeasure. A novel forensic issue arises because it becomes necessary to discriminate the origin of given wildlife products. We tested the effectiveness of five measurements and four indexes of femur bone using farmed minks (n = 40) and escapees (n = 32). Results showed all measurements, namely body mass (L_f), body length (M_f), femur mass (V_f), femur length (M_b), and femur volume (L_b), were highly discriminatory. However, they are susceptible to the influence of nutrition level and sex. Femur length index (I_fl), femur linear density (D_l), and femur volume density (D_v) eliminated the influence of level of nutrition and were highly effective. However, I_fl and D_l were influenced by sex (p = 0.000). Because D_v was not influenced by sex (p = 0.683) and was highly effective, it was the preferred index.     

Ordinary Heroes vs. Failed Lawyers—Public Interest Litigation in Erin Brockovich and Other Contemporary Films

Although feature films may overpraise lawyers and civil courts as means of securing justice, they caricature lawyers and litigation. Analysis of Erin Brockovich (directed by Steven Soderbergh and produced by Danny DeVito, et al., 2000) reveals four motifs—two favorable and two unfavorable to public‐interest litigants and litigation—that characterize similar films in the last decades: Class Action (1991), The Rainmaker (1997), The Sweet Hereafter (1997), A Civil Action (1998), The Insider (1999), Runaway Jury (2003), and North Country (2005). These filmic populist romances promote ordinary heroines (mostly) who redeem a problematic system through common sense and everyday virtue rather than through laws, lawyers, and litigation.     

Reviews

Richard Bellamy, Vittorio Bufacchi and Dario Castiglione (eds), Democracy and Constitutional Culture in the Union of Europe Ian Ward, Law and Literature: Possibilities and Perspectives Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs George Metaxas-Maranghidis (ed), Intellectual Property Laws of Europe Ian Harden, State Aid: Community Law and Policy Michael Moran and Tony Prosser (eds), Privatization and Regulatory Change in Europe Lord Cockfield, The European Union: Creating the Single Market Roger Brownsword, Geraint Howells and Thomas Wilhelmsson (eds), Welfarism in Contract Law Stuart Bridge, Residential Leases     

Postmortem Blood Concentrations of R‐ and S‐Enantiomers of Methadone and EDDP in Drug Users: Influence of Co‐Medication and P‐glycoprotein Genotype

Abstract: We investigated toxicological and pharmacogenetic factors that could influence methadone toxicity using postmortem samples. R‐ and S‐methadone were measured in femoral blood from 90 postmortem cases, mainly drug users. The R‐enantiomer concentrations significantly exceeded that of the S‐enantiomers (Wilcoxon’s test, p < 0.001). The samples were divided into four groups according to other drugs detected (methadone only, methadone and strong analgesics, methadone and benzodiazepines, or methadone and other drugs). There was no significant difference in any of the R‐methadone/total methadone ratios among the four groups. The median R/S ratio was 1.38, which tends to be higher than that reported for the plasma of living subjects. In addition, we investigated whether small nucleotide polymorphisms in the MDR1 gene that encode the drug transporter P‐glycoprotein were associated with the concentrations of R‐ and S‐methadone and its metabolite 2‐ethylidene‐1,5‐dimethyl‐3,3‐diphenylpyrrolidine. No significant association was detected.     

REVIEWS

Robert Stevens, The Independence of the Judiciary: The View from the Lord Chancellor's Office Cass R. Sunstein, The Partial Constitution Simon Frith (ed), Music and Copyright Alan S. Rosenbaum, Prosecuting Nazi War Criminals Eric Barendt, Broadcasting Law: A Comparative Study Carol A.G. Jones, Expert Witnesses: Science, Medicine and the Practice of Law Rolando Gaete, Human Rights and the Limits of Critical Reason Jane Stapleton, Product Liability     

Estimating Time Since Death from Postmortem Human Gut Microbial Communities

Postmortem succession of human‐associated microbial communities (“human microbiome”) has been suggested as a possible method for estimating postmortem interval (PMI) for forensic analyses. Here we evaluate human gut bacterial populations to determine quantifiable, time‐dependent changes postmortem. Gut microflora were repeatedly sampled from the proximal large intestine of 12 deceased human individuals as they decayed under environmental conditions. Three intestinal bacterial genera were quantified by quantitative PCR (qPCR) using group‐specific primers targeting 16S rRNA genes. Bacteroides and Lactobacillus relative abundances declined exponentially with increasing PMI at rates of N_t = 0.977e^?0.0144t (r² = 0.537, p < 0.001) and N_t = 0.019e^?0.0087t (r² = 0.396, p < 0.001), respectively, where N_t is relative abundance at time (t) in cumulative degree hours. Bifidobacterium relative abundances did not change significantly: N_t = 0.003e^?0.002t (r² = 0.033, p = 0.284). Therefore, Bacteroides and Lactobacillus abundances could be used as quantitative indicators of PMI.     

All Anchors Are Not Created Equal: The Effects of Per Diem versus Lump Sum Requests on Pain and Suffering Awards

This experiment examined whether different quantifications of the same damage award request (175,000 lump sum,175,000 lump sum, 10/hour, 240/day,240/day, 7300/month for 2 years) influenced pain and suffering awards compared to no damage award request. Jury-eligible community members (N = 180) read a simulated personal injury case in which defendant liability already had been determined. Awards were: (1) larger for the 10/hour and10/hour and 175,000 conditions than the 7300/month and control conditions and (2) more variable for the7300/month and control conditions and (2) more variable for the 10/hour condition than the $7300/month and control conditions. No differences emerged on ratings of the parties, their attorneys, or the difficulty of picking a compensation figure. We discuss the theoretical implications of our data for the anchoring and adjustment literature and the practical implications for legal professionals.     

The DNA field experiment: a randomized trial of the cost-effectiveness of using DNA to solve property crimes

We report the results of a prospective, randomized study of the impact and cost-effectiveness of DNA evidence in investigating property crimes, mainly residential burglary. Biological evidence was collected at up to 500 crime scenes in five U.S. cities between 2005 and 2007, and cases were randomly assigned to the treatment and control groups in equal numbers. DNA processing was added to traditional investigation in the treatment group. A suspect was identified in 31% of treatment cases and 13% of control cases. A suspect was arrested in 22% of treatment cases and 10% of control cases. Across the five sites, each additional arrest—an arrest that would not have occurred without DNA processing—cost slightly more than US14,000. In the most cost-effective sites, an additional arrest cost less than US14,000. In the most cost-effective sites, an additional arrest cost less than US4,000. Expanding the use of DNA as an investigative tool has profound implications. Since DNA-led investigations are more costly than business-as-usual, substantial investments will be required to expand the capacity of crime laboratories, police, and prosecutors to use this investigative tool efficiently. In time, such a change may also impact the types of crimes of cases processed in the criminal justice system.     

‘In fabrorum potestate’: Plautus and the Mother's Power in Ancient Rome

Plautus’ Mostellaria contains the first attestation of the attribution of potestas over children to both parents, the mother as well as the father, in ancient Rome. Such an early analogy between pater and mater regarding their social status as parentes, along with a certain correlation between the parents’ duties and their power over their children, seems to suggest that a new social conception of the Roman family was already spreading in Plautus’ day, concurrently with the progressive recognition of natural kinship (cognatio). Set in the framework of the legal and literary sources on this matter, the excerpt brings under discussion the traditional motionless view of the patria potestas and appears to be particularly significant in reconstructing not only the real social and legal status of the Roman mater but also the historical development of the legal system in ancient Rome.     

The ex turpi causa principle in Hounga and Servier

In Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.     

Book Reviews

Books reviewed: Hilary Sommerland and Peter Sanderson, Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status N.E.H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence Tim Murphy, The Oldest Social Science? Configurations of Law and Modernity T. Jones and T. Newburn, Private Security and Public Policing R. Abrahams, Vigilant Citizens Angela Devlin, Invisible Women     

A Charmed Spectacle: England and its Constitutional Imagination

This article argues that the fate of England – a subject of increasing contemporary interest – is inexorably linked to that of its constitution. Englishness is an impression, one that is rooted in its constitutional imagination, a bundle of impression and images, which can be found, not merely in statutes and cases, but in a myriad texts and treatises. The first part of the article concentrates on the constitutional imagination fashioned by the likes of Hooker and Spenser in the wake of the Henrician and Elizabethan settlements. The second part then looks at the frantic efforts of men such as Burke and Wordsworth to reinvest this imagination in the late eighteenth and early nineteenth centuries. The final part of the article suggests that the`charmed spectacle' of the constitution, as Bagehot terms it, still represents a formidable residual strength against which any mooted constitutional reforms must be measured. This revised version was published online in August 2006 with corrections to the Cover Date.