义务冲突——艾滋病防治中的伦理法律难题

随着艾滋病预防对策的深入研究,新的伦理难题——义务冲突凸显出来。一方面,放弃艾滋病患者的隐私将其患病实情告之其性伴侣以保护其生命权、健康权还是保护艾滋病患者的隐私而漠视其性伴侣的人身权利？同时,鉴于当前艾滋病人犯罪已成为一种新型、危害性比较大的犯罪形式,是保护病人自主、保障艾滋病患者的隐私,还是维护公共健康、放弃艾滋病患者的隐私权？利益权衡中,只能取救死扶伤的道德、法律义务而舍弃保护患者隐私的法律义务,取公共健康而放弃个人权利。     

The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.     

法律继受的窘境:继受方的论辩与抗争——为《民法的伦理分析》所作的序言

<正>一、罗马法殖民化中的民德国法学家耶林曾言:罗马帝国曾三次征服世界,第一次通过武力,第二次通过宗教(基督教),第三次通过法律。尽管耶林所言并非完全属实,但从法律文化脉络的角度看,无论是本书作者赵万一先生居住的中国,还是执笔这篇小文的本人居住的日本,在历史法律文化上都程度不同地受     

美国宪法解释:"麦迪逊两难"之消解

在美国宪法解释实践中长期存在着被学者们所称的“麦迪逊之两难”问题,即民主多数统治的自由与少数自由权利之间始终处于一种似乎不可消解的张力之中。不同的学者和法官由于基于各自不同的民主与宪政原则,而在宪法解释的理论与实践中采取了不同的解释方法与立场,主要分属两大宪法解释流派:原意主义和非原意主义。然而,认真考察和分析美国宪法与宪政原意与原则理想,则会得出“麦迪逊之两难”命题不过是一个假命题的结论,因为真正的民主自身包含着自由平等原则。     

End-of-Life Decisions in Albania: The Call for an Ethical Revision

Liverpool Law Review - While in Western European countries, the end-of-life decisions have become a matter of public policy, this paper provides a detailed analysis of end-of-life decisions in...     

Impact Fees: The Cost-Benefit Dilemma in Florida

The issue of imposed exaction of fees, dedications, and improvements as conditions to final development approval has been simmering in Florida for a decade. It was put on the back burner by the Florida Legislature during the-1975 session when a bill authorizing impact fees fell victim t o aggressive development industry lobbying and a declining statewide economy. However, it may shortly come to a boil when the Florida Supreme Court considers the city of Dunedin and Broward County impact or land use fee appeals.     

Too Many Black Men: The Sentencing Judge's Dilemma

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.     

现代化的困窘:《法律现代主义》读后

与德沃金、昂格尔和波斯纳这些现如今在中国大陆声名鼎沸的当代美国法学家相比,戴维·鲁本这个名字听起来或许会让中国法学界的读者们极感陌生;同样的,《法律现代主义》〔1〕一书也绝不像《认真对待权利》、《现代社会中的法律》及《法律的经济分析》诸书那样在中国法学圈中广为流布。然以笔者拙见,本书之磅礴厚重、犀利深邃实在是别开生面,甚至更为切近近代中国的社会情弊;更有助于我们反省百余年来,一代代中国人投身其中,苦苦探寻和追索却又无从自拔的所谓“现代化陷阱”。当然,如此比况,可能极不合宜,也难逃老王卖瓜之讥。 顾 名 思 义 ,…     

我国刑事辩护的困境与出路

二十世纪90年代以来,我国律师业作为社会生活中一项不容忽视的服务性产业,已经取得了令人瞩目的成就。然而,在此大背景下,刑事辩护实践却较1996年以前有了明显的退步:刑事案件的律师辩护率不仅没有增加,反而有所下降①。值得庆幸的是,刑事辩护实践中暴露出的种种问题已经引起了社会各界尤其是法学界的普遍关注;一些地方为了解决“刑事辩护倒退”的问题,也已经进行了不同程度的尝试。但是,在方兴未艾的刑事诉讼法修改过程中,学界对于如何解决刑事辩护的困境却殊少深入分析。为了能够引起对此问题的关注,本文试图揭示刑事辩护面临的亟待解决的…     

The Dilemma of Modern Zoning

The zoning process is subject to steadily expanding volume and variety of demands and criticism. Some wish it, alone, to control the rate and location of growth and bemoan that often zoning is not so used. Others feel that zoning seldom has any rational basis and is applied on a case by case basis with little or no consideration of the existing or proposed capacity to serve the area with sewers, water, schools, parks and the many capital facilities which are an integral part of a community's infrastructure. A few say zoning is often decided on the basis of cronyism or bribery. More often critics say that zoning is decided on emotional issues by “mob rule” and that, in effect, many decisions exemplify democracy at its worst. The timid official yields to the most persistent voices by the developer, neighbors, or environmentalists and often ignores altogether the suggestions of the professional engineers and planners who in theory at least take an objective long-range view of urban development.