Quasi-static and dynamic bending stress of the pediatric femur for producing a femoral fracture

At the Institute of Forensic Medicine of the University of Heidelberg, in the years 1986-1988 thigh loading tests were conducted in order to produce fractures in a total of 28 cadavers of babies and children who had died at ages ranging from 1 day to 6 years. In 18 tests a universal strength testing machine was used and each thigh was loaded quasi-statically from the outside with a blunt edge applied to the middle of the femur, bending it to the point of fracture. The loading velocity amounted 50 mm/min with a defined support distance. The breakage load amounted to 470 N in a 6-day-old baby and increased about evenly up to 2920 N in a 6-year-old child; however, in a newborn 2720 N was needed and in a 15-month-old child, 5700 N. The total deformation way ranged from 16 to 60 mm. The main types of fracture that occurred were: complete and incomplete transverse fractures, oblique fractures, Messerer fractures, and spongiosa fractures. Ten children ranging in age from 2 months up to 27 months were submitted to dynamical thigh loading by means of a failing weight impactor and a horizontal impactor. Only in one case did a transverse fracture occur, when the lateral thigh impacted on an edge at a falling height of 70-93 cm. The forces set up amounted to 320-600 N with the falling weight impactor and to 2370 N with the horizontal impactor. These results suggest that fracture of the femur does not occur if a baby or small child falls from a changing table or from an adult's arm.     

A voice for change? Trust relationships between ombudsmen,individuals and public service providers

There has been a debate for years about what the role of the ombudsman is. This article examines a key component of the role, to promote trust in public services and government. To be able to do this, however, an ombudsman needs to be perceived as legitimate and be trusted by a range of stakeholders, including the user. This article argues that three key relationships in a person’s complaint journey can build trust in an institution, and must therefore be understood as a system. The restorative justice framework is adapted to conceptualize this trust model as a novel approach to understanding the ombudsman institution from the perspective of its users. Taking two public sector ombudsmen as examples, the paper finds that voice and trust need to be reinforced through the relationships in a consumer journey to manage individual expectations, prevent disengagement, and thereby promote trust in the institution, in public service providers, and in government.     

Damages for Mental Distress and Bad Faith in Disability Claims

This article examines recent changes in the law in Canada in relation to the court’s willingness to acknowledge the significance of, and award compensation for, intangible loss arising from breach of contract. When a claim for benefits is wrongly refused in a disability contract, a primary goal of the contract, which is to provide peace of mind, is unrealized. Where this causes mental distress, Canadian courts are now willing to award compensation. Similarly, if an insurer conducts itself in such a manner as to attract a punitive damages award, a consideration in assessing the quantum of the award is the vulnerability of the insured. The evidentiary basis for these claims will often include expert psychological opinion. Various considerations for determining the existence, nature, and scope of the psychological issues relevant to a claim for damages for mental distress and/or punitive damages are covered in this article.     

国人对民决团在英美法庭中的功能的误解

民决团仅仅负责事实审,决定事实问题;法官则负责法律审,决定法律问题。这个认识的错误在于：普通法中没有“事实审”、“法律审”的术语,这是国人杜撰出来的。普通法事实发展出来法律,法律是事实的积累。民决团事实上既决定法律又决定事实。它在美国,具有最高权力,大于总统、国会和最高法庭。另外民决团在美国7个州还决定量刑,在有死刑的州,还决定死刑。事实与法律的区分和混合,有助于法官将复杂问题交给民决团决定并在上诉中捍卫民决团的最高权力;也有助于法官对法律问题下命令、进行违宪性审查。总之,理解民决团的最高权力,是理解普通法的关键。     

行政法上请求权的理论构造

公法请求权根源于并服务于基础性公法权利,但具备独立实体权利的要素,具有相对的独立性。确保或回复基础性公法权利不受干扰状态的干扰防御请求权和作为受益权核心内容的给付请求权是公法请求权的两种典型形态。公法请求权的确认和保护,对基础性公法权利的实现具有重要意义,只有实现对公法请求权的全面保护,方可实现对基础性公法权利的全面保护。我国应当通过立法和司法的革新措施促进公法请求权的行政法制保护,以提升公法权利的行政法保障水平：一方面,行政立法应当树立对公法请求权予以直接立法确认的理念;另一方面应通过行政诉讼制度的改革促进公法请求权的司法保护。     

Withdrawal of life-sustaining treatment from a patient in a minimally conscious state

This column reports on a recent decision, the first in England in which a court was asked to authorise the withdrawal of artificial nutrition and hydration from a patient in a "minimally conscious state". Since the seminal decision in 1993 in Airedale NHS Trust v Bland [1993] AC 789, in which the House of Lords authorised withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state, the relatively new diagnosis of a "minimally conscious state" has been recognised. In deciding whether it was in the patient's best interests that artificial nutrition and hydration be withdrawn and withheld, the court made a key legal determination, with precedential effect, as to whether the so-called "balance sheet" approach to determining a patient's best interests, as opposed to the (discredited) "futility" principle, applies to a patient in a minimally conscious state. The merit of the former approach is that it forces explicit consideration of quality-of-life assessments in favour of and against withdrawing life-sustaining treatment. A significant pitfall of the English position, as it is currently developing, is the premium it places on accurate diagnosis, whether of vegetative state or minimally conscious state. These issues will have to be faced sooner or later by Australasian courts.     

The Collision of Islam and Terrorism in Central Asia

The five Central Asian republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan gained independence in 1991 following the collapse of the Soviet Union. The rapid disintegration of the Soviet Union and the subsequent unexpected independence of Central Asian states in 1991 resulted in a renewal of nationalistic feelings and, in some quarters, a desire to re-establish a Caliphate. Some terrorist groups in Central Asia see the future of the region as being a Caliphate. The question arises whether adherence to Islam and its ideology in Central Asia is significant enough to be a foundation for the formation of a Caliphate. This paper proposes an answer to this question by analyzing the potential connection between terrorism and the revival of Islam in Central Asia.     

Australian Rules: The Rise of Rights and the Demise of the Right

Over a number of years there has been a public debate in Australia over the place of legal rights in the struggle for Indigenous economic, social and cultural gains. Most Indigenous leaders have called for a rights agenda as a solution to Indigenous disadvantage. However, one leader has been a vocal critic of this approach. This paper considers the possibility that although the debates may fundamentally represent different views as to how best to improve conditions for Indigenous Nations, they also represent differing approaches to harnessing the support of mainstream Australia in a politically conservative environment. In coming to this position, I am reminded of the arguments put by proponents of the Critical Legal Studies movement in US, that rights are merely abstractions, and the counter by Patricia Williams, a Critical Race Theorist, that as a result, they can be framed in a variety of ways and can take the form required by the community in which they are found. In Australia, minority groups must find an indexically-open vehicle, fitting to the Australian rhetorical structure(s), to represent their struggle for economic, social and cultural rights. Tracey Summerfield is a white woman born in Perth, Western Australia. Thanks to Stephanie Monck, a Kungarakan/Warramungu woman from the Northern Territory, who provided assistance and feedback on an earlier version. The views expressed here are, of course, those of the writer alone.     

Teaching law in Scotland

ABSTRACT

The theory of threshold concepts has become a popular way to describe the difficulties students face when trying to grasp fundamental ideas in a discipline. In law authors have suggested a range of concepts as thresholds. However these suggestions conflict with each other, and have not emphasised the way in which students repeatedly encounter such thresholds. Using variation theory and the concept of knowledge capability this article suggests that the Threshold Capability Integrated Theoretical Framework may be a way to resolve those differences and to highlight the ongoing nature of liminality in becoming a professional. Students may grasp initial threshold concepts early in a degree or subject, develop the ability to manipulate and use them in a variety of settings towards the end of the degree, and develop a lifelong professional ability to use them in diverse settings after graduation. Law students, lawyers and indeed law teachers may be best seen as in a constant state of learning. The uncertainty that goes with that learning is to be embraced, and encouraged as part of the way we teach law.     

An explanation for camera perspective bias in voluntariness judgment for video-recorded confession: Suggestion of cognitive frame

Three experiments were conducted to test the hypothesis that difference in voluntariness judgment for a custodial confession filmed in different camera focuses ("camera perspective bias") could occur because a particular camera focus conveys a suggestion of a particular cognitive frame. In Experiment 1, 146 juror eligible adults in Korea showed a camera perspective bias in voluntariness judgment with a simulated confession filmed with two cameras of different focuses, one on the suspect and the other on the detective. In Experiment 2, the same bias in voluntariness judgment emerged without cameras when the participants were cognitively framed, prior to listening to the audio track of the videos used in Experiment 1, by instructions to make either a voluntariness judgment for a confession or a coerciveness judgment for an interrogation. In Experiment 3, the camera perspective bias in voluntariness judgment disappeared when the participants viewing the video focused on the suspect were initially framed to make coerciveness judgment for the interrogation and the participants viewing the video focused on the detective were initially framed to make voluntariness judgment for the confession. The results in combination indicated that a particular camera focus may convey a suggestion of a particular cognitive frame in which a video-recorded confession/interrogation is initially represented. Some forensic and policy implications were discussed.     

A review of recent developments affecting COBRA rights

Due to the high cost of health care claims and COBRA's status as remedial legislation, COBRA has generated a significant amount of litigation in recent years. While the early COBRA decisions tended to broaden the law in order to provide a remedy to an otherwise uninsured qualified beneficiary, the recent trend in the case law has been to limit the expansion of COBRA rights based on a narrower construction of the statute. Even so, COBRA still represents a legal minefield for employers. As a result, a careful employer will minimize its exposure by monitoring changes in the law and its interpretation and making appropriate modifications to its COBRA documentation and administration. This article discusses some of the more significant recent changes in the law affecting qualified beneficiaries' COBRA rights--and therefore, employers' exposure.     

Advance directives and the persistent vegetative state in Victoria: a human rights perspective

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.     

Dimensions of Punitiveness in Germany

Over the last few years, international criminology has increasingly focussed parts of its research on whether there has been a rise in punitiveness in certain nations, and, if so, to what extent it is linked to social developments. In particular, the spread of globalisation corresponding fears and worries have been introduced into the discussion as possible influencing factors. Analyses often refer to the situation of the USA or Great Britain. The situation in continental Europe, however, is obviously a different one. In this contribution especially the situation in Germany will be described. The differentiated levels of punitiveness include attitudes in the population, legislation, sentencing, and enforcement of sentences. As concerns the attitudes within the population the results are partially contradictory, which particularly is due to the blurry concept and the different operationalisations of punitiveness. Overall the results of surveys show a tendency of slightly rising harshness for the population’s attitudes. On the level of legislation the criminal laws have in parts become harsher over the last decades. More statutory definitions of offences have been established, while comparable measures of decriminalisation have fallen away. Here a more distinct development towards punitiveness becomes evident. Case law, especially in the field of sentencing, also tends to become tighter. Eventually, for certain groups of criminals like sex and violent offenders a tendency towards a declination of early releases can be found. Today, these offender groups have to serve a larger proportion of their sentence than they had to in the 1970s. Overall these results in Germany indicate a slight rise of punitiveness that is most distinctly seen in the area of legislation. As to the attitudes to punishment within the population the data hardly suffice to claim a rise in punitiveness.     

Minors' capacity to refuse treatment: a reply to Gilmore and Herring

Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity-an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician's point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor's understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently, a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.     

Belief in a Just World and Commitment to Long-Term Deserved Outcomes

We investigated whether people need to believe in a just world in part because such a belief helps people to work toward long-term goals and to do so in such a way that they are deserved. We assessed participants' long-term goal focus and also their commitment to deserving their outcomes (via a psychopathy scale). In a second session, participants were then exposed to a victim whose situation did or did not contradict a belief in a just world. When the victim's situation contradicted a belief in a just world, the greater the participants' tendency to focus on long-term outcomes, the more they blamed the victim for her misfortune; but this relation only occurred for participants with a strong commitment to deserving their outcomes (i.e., those low in psychopathy). The results are consistent with our argument that, given the function of the belief in a just world proposed in this article, people would have a greater need to preserve the belief (e.g., by blaming victims of injustice) the greater their investment in long-term and deserved outcomes.     

Hermes: God of Thieves. Plagiarism in Twentieth Century Literature

The question of imitation moves from an open and obvious phase, the phase of Classicism, during which the models from antiquity were imitated with pride and with a conscious desire to set fixed and codified models for compositions, following norms for distinction in well-defined genres, to the period of Romanticism, during which the concept of the work's uniqueness predominated, and the work was seen as the link between God and the world. During the twentieth century the attitude towards plagiarism changed again: in our century the question of artistic originality becomes anxiety-provoking and the relationship with tradition becomes competitive. The heavy weight of tradition creates in the writer a desire to exorcise in some way the fear of the death of creative originality and gives rise to the playful, demystifying re-presentation of previous works, in an attempt to desecrate genres and precursors, re-creating them overtly and covertly at the same time. Thus plagiarism transforms itself into a new creative force, in which tradition is no longer imitated in a subservient, nor a reverential fashion, nor in the sense of the subdivision of pre-established genres. Plagiarism becomes instead a challenge on the same grounds of the canonical authors, demonstrating in this manner a strong capacity to capture the essence of the author's own language (a link to the new emphasis on the act of reading). This revised version was published online in July 2006 with corrections to the Cover Date.     

Strikes: strategy and tactics for managers

The threat of a strike is a powerful weapon in the union's arsenal. Management, caught off-guard when a strike hits, can be faced with insurmountable problems regarding maintenance of business operations and may be put in a position of capitulating to labor's demands. To avert these problems and to be able to effectively cope with the impact of a walkout, management must have a plan of action well in advance of the strike. In the following article, the authors provide a detailed strategy for strike preparation and discuss the issues management must address in dealing with a potential strike.     

公安机关向新闻媒体提供侦破案件相关资料应负谨慎注意义务——评李海峰等诉叶集公安分局、安徽电视台等侵犯名誉权、肖像权纠纷案

2005年3月20日，安徽省霍丘县叶集镇发生一起强奸（未遂）案，被告叶集公安分局立案後，於同年4月13日下午将犯罪嫌疑人朱某某抓获。当晚．叶集公安分局欲安排被害人对犯罪嫌疑人进行混合指认。要求被告叶集实验学校予以协助，提出需要数名与犯罪嫌疑人朱某某年龄相仿的初中男生配合指认。当晚9时下自习时．叶集实验学校教导主任对该校初二某班班主任张爱国说明了此事，张爱国即带领原告李海峰、高平、刘磊、陈光贵、张力保和孙俊前往叶集公安分局。该局民警向张爱国及六原告说明了混合指认的相关内容，张爱国在谈话笔录上签名後，六原告按民警要求手举号牌与犯罪嫌疑人朱某某一起列队接受指认．这一过程被民警摄像和拍照。     

Toward a social geography of baby farming

This paper uses a range of archival sources to undertake a case study of the people and practices encompassed by the term “baby farming” in Melbourne, Victoria, Australia. It argues that baby farming needs to be located in space and time in order to reach some accommodation between its materiality and the discursive construction that continues to distort historical debate. Neither a criminal nor a compassionate practice, baby farming emerges as an economic exchange predicated on the vulnerability of single mothers, the disposability of their children, and in many cases, the desperation of poor women who see taking infants to nurse as a way of earning an income.     

法经济学视野中的行政法与民法的分界

对于不当行为,立法者是选择民法还是行政法进行控制,一般需要考量四个要素：当事人与行政主体掌握的行为风险信息方面的差异、加害人的赔偿能力、索赔威胁大小和行政成本。对于损害小、损害集中且发生率低的日常行为,应选择民法进行规制;对于发生率高、损害大、发现率低、损害分散的风险行为,行政法进行控制的社会效果更为明显。当同时选择两种控制机制时,遵守行政法规一般不构成加害人对抗受害人诉求的抗辩事由。