Cohabitation,female sacrifice,and judge-made law

This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a ‘joint family venture’ may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic integration, such as joint bank accounts and the presence of children. Despite the discourse of family diversity, gendered patterns run across all the couples, with women assuming primary care of children, shouldering domestic labour, and making career sacrifices for the family. In a sign of the limits of judge-made reforms, the doctrine may be harder for some claimants to access than for others, in ways not necessarily tracking commitment and economic integration.     

The evolution of consent search law

This study examines the legal issues associated with consent searches conducted by law enforcement officers to gather evidence for criminal prosecutions. Through a review of the available case law relating to consent searches the study examines the requirements of a valid consent to search, the issues associated with these requirements, and the relationship between these requirements and the Fourth Amendment. While the paper focuses on Supreme Court decisions, lower court cases are included to illustrate specific points and examine general trends. The reader is given a general understanding of judicial preferences for procedures to be used when effecting consent searches.     

The evolution of commitment law in the nineteenth century

The generally accepted interpretation of the evolution of commitment law in the nineteenth century is challenged by means of an historical investigation of the law's development in a single state—Pennsylvania. Rather than an abrupt switch from relaxed commitment procedures to a system of stringent safeguards, which most historical accounts of the period describe, examination reveals that Pennsylvania law underwent a slow accretion of procedural protections, with the essential discretionary role of families, friends, and physicians left undisturbed. The implications for current policy of this challenge to the traditional account are discussed.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Link law: The emerging law of internet hyperlinks

Although Internet enthusiasts often claim a right of on‐line associations, that is, a right freely to link to other content on the Internet, evolving case law demonstrates that there is no absolute right to associate or link on the Internet. Rather, business law at times imposes limits and penalties on linking. As business grows on the Internet, litigants are likely to use creative theories based on unfair competition and intellectual property law to seek limits on linking. This article examines the first waves of Internet link law cases, how the legal positions have been framed and the principles with which those cases have been resolved. The article reviews the basics of the legal theories used (and likely to be used in the future) to challenge links. The article then reviews key linking cases involving, among other issues, direct links, “framing” and “inlining,” hidden metalinks and contributory infringement through links and mirror sites. The article concludes that, contrary to the original ethos of Internet use, in the era of business use of the Internet, linkages will often be scrutinized and controlled, and sometimes discouraged, litigated or penalized.     

所谓法律

法律是什么?——这无疑是所有法律人感兴趣的一个问题,也是法学家们终生孜孜以求的法学领域的“哥德巴赫猜想”。“所谓法律”是法学家们喜欢各抒己见的命题,也是一个仁者见仁,智者见智的问题,以法学研究为志业的我自然也有自己的法律观。 敬畏法律 卢梭曾说过这样一句悲天悯人的名言:人生而自由,却无往不在枷锁之中。这句隐含着太多无奈的箴言实际上道出了人类真实的永恒宿命般的生存境遇:人类永远不可能摆脱由种种社会关系形成的枷锁。法律,就是与人类共存的枷锁之     

The law commission and judicial law reform*

This article explores ways in which mooting can provide high school students with insight into life as a law student. In gaining high school students’ insights on their early exposure to a legal research skills environment involving oral argumentation exercises, the authors argue that law schools can incorporate experiential learning pedagogies into student recruitment efforts to ensure that both law school and prospective student are better prepared for each other during the delivery and study of law at university level.     

市场监管法属于经济法抑或属于行政法

市场监管法以市场监管关系为调整对象则属于行政法范畴,要使其能够真正发挥应有的作用,则必须以竞争关系为调整对象,并以有关国家机关为辅助机关,以司法救济途径为主的方式重新构建之。     

The risks of contract law

The economic analysis of law may be able to provide some reason why it is efficient to enforce wholly executory contracts, but (I submit) it has not done so.     

The invention of health law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.     

The feminist defense of law

The purpose of this essay is to highlight the fact that certain specific governing or guideline criteria are in fact necessary before one can establish cases in which it would be admissible to treat the genders unequally. Those criteria, insofar as women＇s rights are concerned, consist of the need to overcome a situation of inequality which arises due to cultural and social reasons. An analysis of the different types of feminist movements follows, concluding that feminism implies two types of hypotheses. On one level feminism can be said to be a theory for equality; on another level it is a theory which turns around the objectivity of law, although it does, in both cases, challenge classical political and iudicial theses.