A Dutch perspective: the limits of lawful euthanasia

Dutch author Ubaldus de Vries reviews the current state of the euthanasia law in the Netherlands. The legislation, enacted in 2001, creates a medical exception that allows for euthanasia in cases where patients experience "hopeless and unbearable suffering." A brief history of the Dutch approach to euthanasia is set forth, case law is reviewed, and the unique role of the doctor is examined in seeking to understand the extent of one's right to euthanasia in the Netherlands. Because the courts must determine what constitutes "hopeless and unbearable suffering," Professor de Vries analyzes the judicial interpretation of "suffering" and concludes that judicial interpretation has reached its limits, and thus by implication, the limits of lawful euthanasia have been reached.     

A PCR marker Linked to a THCA synthase Polymorphism is a Reliable Tool to Discriminate Potentially THC‐Rich Plants of Cannabis sativa L.

Neither absolute THC content nor morphology allows the unequivocal discrimination of fiber cultivars and drug strains of Cannabis sativa L. unequivocally. However, the CBD/THC ratio remains constant throughout the plant's life cycle, is independent of environmental factors, and considered to be controlled by a single locus (B) with two codominant alleles (B_T and B_D). The homozygous B_T/B_T genotype underlies the THC‐predominant phenotype, B_D/B_D is CBD predominant, and an intermediate phenotype is induced by the heterozygous state (B_T/B_D). Using PCR‐based markers in two segregating populations, we proved that the THCA synthase gene represents the postulated B locus and that specific sequence polymorphisms are absolutely linked either to the THC‐predominant or the THC‐intermediate chemotype. The absolute linkage provides an excellent reliability of the marker signal in forensic casework. For validation, the species‐specific marker system was applied to a large number of casework samples and fiber hemp cultivars.     

Who has the right to govern online activity? A criminal and civil point of view

This paper compares how the Australian defamation case of Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 and the English obscenity case of R. v. Perrin [2002] EWCA 747 dealt with the legal concept of publication in the transnational online context or, more specifically, with the issue as to how to treat a foreign online publication. Despite the different nature of the causes of action, with the former being a civil case and the latter being a criminal case, the article shows that, not only were the underlying jurisdictional issues the same, but that there were also significant similarities in the approaches taken to them. Both courts firmly rejected arguments in favour of an exclusive country‐of‐origin approach and stuck with the traditional country‐of‐destination orthodoxy. Nevertheless, it is argued that, given the different nature of and rationales behind civil and criminal law, as well as the less cooperative transnational criminal law regime, the same jurisdictional approach taken to both civil and criminal transnational activity may in fact yield substantially very different outcomes. Thus, the approach appropriate in the criminal law context may lead to undesirable over‐regulation in the civil law context.     

Differences in personality and mental state between suspects and witnesses immediately after being interviewed by the police

Abstract

There is increased recognition that people interviewed by the police are often psychologically vulnerable due to modest intelligence, mental health problems, disturbed mental state, and personality problems. The current study aimed to investigate differences in the mental state and personality between suspects and witnesses. The participants were 78 individuals (47 suspects and 31 witnesses) who had been interviewed by the Icelandic police. They were assessed psychologically immediately after the interview with the police was completed. Significant differences emerged between the two groups with the suspects being more depressed, hopeless, compliant and personality disordered than the witnesses. Four of the suspects claimed to have made a false confession to the police due to their immediate need or psychological problems.     

Individual Dismissals in Europe and the United States: A Model on the Influence of the Legal Framework on Firing Costs

In this article, we present a model of individual dismissals based on the workers' right to file a suit against their employer arguing that the dismissal is unjustified or unfair. The model is a standard pre-trial bargaining game between a firm and a worker. We study two cases: when the law states the severance pay for unfair dismissal (the European case), and when judges can decide freely on the compensation to be paid to the worker (the American case). The model provides some guidelines for Labour Law reforms. In the European case, a decrease in the severance pay for unfair dismissals fixed by law will decrease the severance pay offered by the firm, and only under some assumptions will decrease the expected firing cost and will increase the settlement probability. In addition, the transition from the European to the American case is likely to increase the probability of settlement (and to decrease it in the opposite case) with ambiguous effects on agreed severance pay and expected firing costs.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Can a Member of Parliament be ‘Genuinely and Properly’ Interested in Court Records?

If there was ever a case where the factual substratum could not have ever been foreseen, McCully v Whangamata Marina Society Inc & Anor ¹ 1 [2006] NZCA 209. (McCully) was one. The case is an unexpected by‐product of the substantive underlying case of Whangamata Marina Society Inc v Attorney‐General ² 2 HC WN CIV 2006, 485–789. (Whangamata) where the member of Parliament (MP) was not a party. The McCully case is unusual because: (1) it is, in law, a civil procedure case that matures into a significant constitutional law case; and (2) it is not the ruling alone, but the factual substratum particularly, that touches on the very heart of constitutional law. This article is limited to a cross‐analysis of the separation of powers, the sub judice rule, and ministerial decision‐making.     

‘A Very Uncommon Case’: Representations of the Zong and the British Campaign to Abolish the Slave Trade

This paper examines the representation of the case of the Zong within the British campaign to abolish the slave trade. It traces the ways in which the case produced an iconic narrative for the movement by paying particular attention to Granville Sharp's original accounting of the event, and then to the ways in which the latter was transformed in key abolition propaganda documents. It is argued that the legal implications of the trial fell away as the Zong was appropriated, and mythologised, in its adaptation to the abolitionists' agenda.     

How Migrations Affect Private Orders: Norms and Practices in the Fishery of Marseille

The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship generally argues that social norms guarantee the efficiency of private orders and their ability to resist the arrival of newcomers. My data suggest that the Prud'homie has failed to accommodate social changes prompted by migratory flows, not despite but because of its social norms. This paper suggests that social norms are not only powerful tools of governance for private orders, but also forces of inertia that can prevent these orders from accommodating social changes.     

Constitutional Court of the Russian Federation,Ruling of May 15, 2001, No. 134-O

An article in Rossiiskaia gazeta became the reason for initiation of a criminal case against Ruslan Nakhushev, a lawyer and religious figure well known in Nal'chik. But many lawyers think that the future of the case is transparent, due to the flaws in domestic legislation.     

The Zong in the Context of the Eighteenth-Century Slave Trade

This contribution places the Zong tragedy in the wider context of the eighteenth-century Atlantic slave trade, a global business venture which from 1750 to 1807 was dominated by British ships. Evidence for ‘jettison’ within the British slave trade is examined, and the uniqueness of this aspect of the Zong case is emphasised. Attention is given to the role of the Zong hearings of 1783 in bringing together individuals who would go on to play a leading role in the British anti-slavery movement, established in 1787. Finally, this article examines the impact of the Zong incident upon eighteenth-century maritime insurance law relating to ‘human cargoes’, and on the passage of the ‘Dolben Act’ (the first Act to regulate British slave shipping) in 1788.     

Caution in the Classroom: K-12 Teacher In-Class Speech,The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.     

Confronting Religion: Veiled Witnesses,the Right to a Fair Trial and the Supreme Court of Canada's Judgment in R v N.S.

The Supreme Court of Canada's decision in R v N.S. is significant because the majority seems to endorse an understanding of confrontation that assumes a defendant's right to a fair trial is imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest because it permits reflection upon the interrelationship between the right to a fair trial and the right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights. Given that the European Court of Human Rights conceptualises confrontation in epistemic terms, it is argued that it would be unlikely to find that a conviction based upon evidence from a niqab‐wearing witness would infringe the right to a fair trial. This note examines the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanour evidence necessarily undermines trial fairness.     

Council of the Chamber of Attorney of the City of Moscow Record of Disciplinar Proceedings Against Attorney I. [Spring 2008]

[Main accusation: showing disrespect for the court.—Eds.]

An attorney is obliged to challenge unlawful and unjustified actions and rulings committed (issued) by judges in a specific case, but only in a form that does not contravene stipulations of legislation on work as an attorney and the legal profession and of the Code of Professional Ethics for the Attorney.     

The price of non-compliance with the Kyoto Protocol: The remarkable case of Norway

One of the ways to induce compliance is for an international enforcement mechanism to authorize the use of punitive consequences against a non-compliant country. However, such consequences should not cause significant damage to other (compliant) countries. The compliance mechanism of the Kyoto Protocol fails to meet this requirement. The Enforcement Branch of the Compliance Committee is instructed to impose punitive consequences on a non-compliant country that will have considerable adverse welfare effects for compliant countries as well. Using a numerical model, we show that in the case of Norway, the welfare effects can actually be worse if another country is punished than if Norway itself is punished.

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.     

Investigations into Enhancing Yersinia pestis Cells Viability following Environmental Sampling for Forensic Analysis

Following an intentional or accidental bio-warfare agent (BWA) release, environmental sample analysis is absolutely critical to determine the extent of contamination. When dealing with nonspore forming BWA (e.g., Yersinia pestis), retention of cell viability is central to such analyses. Even though significant advances have been achieved in DNA sequencing technologies, a positive identification of BWAs in environmental samples must be made through the ability of cells to form colony-forming units upon culturing. Inability to revive the cells between collection and analysis renders such studies inconclusive. Commercial kits designed to preserve the viability of pathogens contained within clinical samples are available, but many of them have not been examined for their ability to preserve samples containing suspected BWAs. The study was initiated to examine the applicability of commercial solutions aiding in retention of Y. pestis viability in samples stored under nonpermissive temperatures, that is, 40 and 37°C. While none of the tested solutions sustained cell viability at 40°C, the results show five out of 17 tested preservatives were capable of supporting viability of Y. pestis at 37°C.     

Forensic applications of stable isotope analysis: Case studies of the origins of water in mislabeled beer and contaminated diesel fuel

This paper describes the use of oxygen (¹⁸O) isotope analysis of water contained in two different materials — beer and diesel fuel — involved in the resolution of two separate cases. In the first case study, it was possible to demonstrate that a sample of beer labelled as premium brand in fact belonged to a cheap brand. The second case related to the contamination of diesel fuel from a service station. The diesel fuel contained visible amounts of water, which caused vehicles that had been filled up with it to become defective. For insurance purposes, it was necessary to determine the source of water. The δ¹⁸O values for the water of nearly all samples of diesel was close to the δ¹⁸O of local tap water at the filling station.     

Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.