On the Choice of Remedies

At a time when misuse of the power to zone seems to be increasing—some say rampant—when such misuse is frequently ignored even sanctioned by the courts, e.g.; Belle Terre v. Boraas, Steelhill v. Sanbornton, U.S. v. Black Jack (lower federal court), it is heartening to find a powerful court unite behind an articulate and powerfully worded opinion which strikes down an exercise of the police power (zoning) which legislates local biases and unreasonably excludes low income housing. There is an appropriateness too in that it is Justice Hall, some 12 years after his classic dissent in the Vickers case, who rationalizes a long line of often misunderstood New Jersey cases and the case law of other jurisdictions and concludes: “that every … municipality must, by its land use regulations, … make realistically possible an appropriate variety and choice of housing.” A strong concurring opinion further notes; “the use of the zoning power by municipalities to maintain themselves as enclaves of affluence or of social homogeneity … [is] improper and to be strongly condemned.”     

Letters to the Editor

While many basked in the euphoric rays emanating from the New Jersey state court Mt. Laurel decision, commentators and litigators in the land use field were tempering their sentiments with the knowledge of the U.S. Supereme Court's impending consideration of a primary federal land use challenge in Warth v. Seldin. The Court's 5-4 decision, affirming a federal appeals court'ss affirmance of the dismissal of an exclusionary zoning challenge by various individuals and groups, was predicated on the elusive concept of “standing.” If a sufficient case or controversy existed, according to the Court, or if the various classes of plaintiffs alleged a sufficiently personal stake in the outcome of challenge, their right to challenge Penfield's zoning could be established. In Warth the majority took a restrictive view and, on a one by one basis, denied standing to each of the plaintiffs.     

Agency Accountability Strategies After Liberalization: Universal Service in the United Kingdom, France, and Sweden

Liberalization of key network industries is often said to reduce accountability by undermining its traditional mechanisms. Liberalization, others say, promotes accountability by creating new channels and mechanisms. This article suggests that neither view is sufficiently nuanced. Accountability comes in many forms, and the question is less "how much" accountability there is, but what form it takes. And accountability will take different forms in relation to different issues, even within the same organization. Examining accountability in relation to the provision of universal service in electricity and telecommunications, this article demonstrates that in the regimes studied, agencies were generally accountable for providing universal service by deferring, to the maximum possible extent, to political actors or stakeholders. However, when faced with an expert technical question—in this case, determining the costs of the universal service—agencies stressed their professional judgment and transparency. This observation supports a wider hypothesis concerning the conditions under which a variety of agency accountability strategies may be adopted.     

犯罪构成模型运作论

犯罪构成是立法者依据一定的利益需求和价值观念而型构的,表现为认定行为是否构成犯罪的规范标准(模型)。但其本身并非封闭的体系,相反,犯罪构成是开放的体系,它需要不断从具体事案(原型)中吸取能量和信息,即,需要适应新情况,不断修正和调整其意域。犯罪构成的这一动态运作必须受限于罪刑法定原则。     

Participation and Rules- The Functions of Zoning

Data from a case study of piecemeal zoning change suggest that the decisions of citizen zoning boards of appeal are neither lawless nor ineffective. The bulk of requests that come before them are for minor dimension or use variances and are typically allowed unless there is local opposition. The proportion of changes granted varies with the degree of clash between a proposed use or structure and the preexisting local land use-the "character of the community" (particularly in single-family residential areas). Expressions of opinion (positive or negative) by current neighbors and other community members are given heavy weight in zoning decisions.
Despite criticism of zoning boards as defective and illegitimate legal institutions and calls for their abolition, they have remained popular and extremely resistant to change. This is because zoning boards have evolved beyond their explicit rule enforcement functions to also play important dispute-settling and community maintenance functions in the contemporary urban setting. These functions of zoning can only be understood in terms of a participatory model of legal process where legal rules serve to identify situations and trigger sociopolitical processes as much as they serve as substantive norms to be enforced .     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.     

MUDDLING THROUGH THE MURKY WATERS OF TROXEL

A critical case in the area of third-party visitation rights was decided by the U. S. Supreme Court in July 2000 ( Troxel v. Granville ). A plurality in this case held that a Washington grandparent visitation statute was not facially unconstitutional but was as applied to the facts of that case. The author discusses the varying opinions of the Supreme Court justices in the Troxel decision. Next, he analyzes the plurality opinion to determine the appropriate standard of review in grandparent visitation cases. Following is a consideration of how the decision will affect other state grandparent visitation legislation. Examining these issues, the author concludes that future third-party visitation cases will be decided on a fact-specific, case-by-case basis.     

Attitudes toward Rape Victims - an Empirical Study of the Attitudes of Danish Website Visitors

This study of the effects that supervision has on offenders in Denmark is based on the opinions of the offenders themselves. The special methodological problems of a study of this kind are discussed. Most clients say they benefit from supervision and many feel that supervision helps them in trying to live a law-abiding life. This surprising finding is explained primarily by the position of supervision as an extension of the common social security system, which often cannot cope with multi-problem offenders. The study, furthermore, underlines a basic but mostly disregarded condition for achieving success in helping and treating offenders: the relationship between offender and helper.     

我国行政诉讼全面审查制度再思考——法院对行政机关认定事实的态度分析

我国人民法院对行政机关认定事实采取怀疑或否定态度,对行政机关认定事实实行全面审查。英美法系国家法院对行政机关的事实认定采取尊重态度,对事实问题采用宽松的审查标准。大陆法系国家行政诉讼一般不区分事实问题和法律问题,都进行全面审查。我国应当重新思考人民法院的全面审查制度,对专业性和技术性强的行政案件,以及行政机关适用简易程序当场作出决定的案件,人民法院应当尊重行政机关对事实的认定。对一般案件事实,如果法律规定以具备某种性质为要件时,审查行政机关对事实性质的判断是否符合法律的规定。对于重大的或对当事人利益有重大影响的行政案件,进行全面审查。     

错误的刑事羁押与国家的赔偿责任

刑事诉讼中的错误羁押与刑事错案常常相伴而生,但二者并非同一概念。错误羁押以刑事程序法为认定依据,即使没有错案发生,羁押行为违反《刑事诉讼法》的规定亦照样构成错误羁押。与错案相联系的错误羁押或合法羁押都应当导致刑事司法机关的国家赔偿责任,而未构成错案但构成错误羁押并因此导致当事人合法权益损害的,国家也应当有条件地承担赔偿责任。国家对无错案条件下错误羁押承担赔偿责任,有利于增强刑事司法机关的程序公正意识和人权保障意识,防止和减少羁押的滥用。     

困境与抉择：我国引入刑事传闻规则的法理论析

我国当前刑事庭审中存在着诸多弊端，与传闻证据不受限制的使用非常有关，应当引入刑事传闻规则。这不仅有利于发现案件真实，而且有利于保障被告人接受公正审判的权利，特别是对质询问权，实现程序公正，还有助于完善证据制度，实现诉讼的效率。而且，引入刑事传闻规则还具有来自现行制度及法律实践需求的可行性，所谓中国引入传闻规则不可行的观点是站不住脚的。     

Clear cases,do they exist?

Conclusion What I sought to demonstrate was that the relations between (a) how a case fits into the system, (b) what the main structure of the justification is, and (c) whether discretionary authority is used, are not as simple as suggested in the literature.What we saw is that if the justification for a decision in a particular case is a practical syllogism with an established legal rule as its major premiss, there are many possibilities: (a) the case did or did not raise a conflict for the judge between his intuitions about reasonableness and his interpretation of the legal system; (b) the case had or had not a clear solution in conformity with the legal system; (c) the case was or was not decided according to what the system seemed to prescribe.Therefore, the main structure of a justification cannot inform us about questions as: Did the case fit into the system? Is discretionary authority used? The opposition between hard cases and clear cases is much too complex to be of any use to clarify such issues.     

HIV-positive person who did not disclose status convicted of attempted aggravated assault

On 18 September 2003, the Supreme Court of Canada released its unanimous decision in Williams. This is the first case on the issue of criminal liability for HIV exposure decided by the court since its 1998 decision in the Cuerrier case. Williams raised the issue of whether persons with HIV who have unprotected sexual intercourse without disclosing their status to a sexual partner who might already have been infected with the virus, can be convicted of aggravated assault or attempted aggravated assault. The Supreme Court decided that only a charge of attempted aggravated assault could stand. The decision is also significant because the Supreme Court's comments on two ancillary issues may lead to a significant extension of the criminal law related to HIV transmission or exposure.     

The Special Case of Pesticides: Science and Regulation

Pesticide regulation is a data-intensive activity that is strongly controlled at the federal level. The pesticide law FIFRA controls pesticide sale, use, and disposal. Normal use of pesticides is excluded under RCRA and CERCLA. There are approximately 1,000 pesticide active ingredients with highly diverse functions ranging from insecticides to disinfectants and pheromones (insect sex attractants). There is a relatively large database on many pesticides, which helps reduce uncertainty in risk assessments. Witnesses subject to Daubert should be familiar with the data as well as the computer models designed for pesticides. “Inert” ingredients that are formulated with the pesticide active ingredients can become issues in torts cases. Federal courts have ruled both in favor and against FIFRA preemption, i.e., the ability of a plaintiff to seek relief in a torts case may be blocked by FIFRA. Golf course permitting provides a special land use whereby fundamental pesticide risk and regulatory issues are debated at the level of local planning and zoning commissions.     

FDA preemption of drug and device labeling: who should decide what goes on a drug label?

The Supreme Court decided an issue that is critical to consumer health and safety last year. In April 2009, the Supreme Court held that extensive FDA regulation of drugs did not preempt a state law claim that an additional warning on the label was necessary to make the drug reasonably safe for use. Thus, states--and even courts and juries--are now free to cast their vote on what a drug label should say. This is in direct contrast to medical devices, where the federal statute regulating medical devices expressly provides that state regulations are preempted. This Article discusses basic preemption principles and drugs, and explores the policy ramifications of pro- and anti-preemption policy in the healthcare industry.     

INDEPENDENT LEGAL REPRESENTATION FOR CHILDREN IN CUSTODY AND ACCESS CASES

In this article, the author discusses the role of children's representation in custody and access cases, and in particular, considers whether the Stobridge case came to a correct determination of the most appropriate role for children's counsel. The three possible modes of child representation are considered: amicus curiae, litigation guardian, and advocate. The role of amicus curiae is rejected because it does not provide the child with an opportunity to be heard, thus defeating the purpose of representation. The role of litigation guardian is rejected on the basis that the guardian does not advocate the child's interests unless they are consistent with that of the guardian. The author concludes that Stobridge was correctly decided, and that the role of children's counsel in a custody or access dispute in which the children are capable of directing counsel should be that of advocate.     

Community Participation and the Function of Rules: The Case of Urban Zoning Boards

Data from a case study of piecemeal zoning change suggest that the decisions of citizen zoning boards of appeal are neither lawless nor ineffective – the majority of requests that come before them are for bulk and dimension variances which typically do not threaten the land use status quo and are usually granted unless there is local opposition. When substantial changes of land use are involved two factors are influential in determining the outcome of zoning cases – the consistency or clash between the proposed land use and that of the neighborhood surrounding the site, particularly in single-family residential areas; and the expression of opinion (positive or negative) by the residents of the community.
Despite criticism of zoning boards as defective and illegitimate legal institutions and calls for their abolition, they remain popular and extremely resistant to change because they have come to play important dispute settling and community maintenance functions in the urban environment in addition to their explicit rule enforcement functions. These broader community functions of zoning can only be understood in terms of a participatory model of legal process where legal rules are understood as functioning to identify situations as much as they are norms to be enforced.     

Unravelling Osman

The judgment of the European Court of Human Rights in Osman v United Kingdom , decided in October 1998, has proved very controversial. Its implications for the UK law of negligence appear to be immense. Not the least of the complexities associated with the decision is the widespread perception that the reasoning of the Court is extremely difficult to understand, indeed, that it is at times contradictory. This article subjects the Osman judgment to close analysis. It explains the Court's approach to Article 6(1) by reference to the way in which the Strasbourg court has over many years developed its case law on this provision. The article includes an overview of the way in which, so far, the decision has been deployed in UK law. The author suggests that, whatever about the actual result of the case, the reasoning of the European Court in Osman is deeply flawed, and that the UK judiciary should be mindful of this fact when considering its deployment in domestic law.     

Government Regulation of "Adult" Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects

Municipalities that prohibit "adult" businesses from operating in certain areas have justified these "zoning" regulations by advancing the idea that the presence of the business will have so-called "adverse, or negative secondary effects" on the surrounding community. Most recently, a plurality of the United States Supreme Court has upheld the extension of this doctrine beyond the zoning of adult businesses to the symbolic behavior within them in the form of ordinances banning nudity. This article abstracts and analyzes the methods and major empirical findings of studies conducted by United States municipalities, purporting to detect adverse secondary effects of adult businesses. With few exceptions the methods used in the most frequently cited studies are seriously and often fatally flawed. These studies, relied on by other communities throughout the country, do not adhere to professional standards of scientific inquiry and nearly all fail to meet the basic assumptions necessary to calculate an error rate-a test of the reliability of findings in science. Those studies that are scientifically credible demonstrate either no negative secondary effects associated with adult businesses or a reversal of the presumed negative effect. The implications of the lack of evidence of adverse secondary effects for the regulation of performances within adult businesses are discussed.     

欧洲共同体指令的直接效力

在欧洲共同体的所有二级立法渊源中,指令的法律效力是一个颇具争议的问题,尤其是指令在各成员国中是否具有直接效力,更是引起了诸多纷争,而《欧洲共同体条约》和《欧洲原子能共同体条约》均未对此做出规定.以欧洲法院的相关案例法为主线,对其提出的指令的纵向直接效力、协调一致解释及附带横向直接效力原则逐一进行了评析,最后得出结论:为切实有效实现欧洲共同体指令所追求的目标,欧洲法院应当重新定义其提出的指令的直接效力原则;其中,最具有关键性意义的是,应当赋予指令在自然人和法人等私人之间的横向直接效力的职能.