The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.     

Legal Advice Privilege and its Relevance to Corporations

This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.     

An organization's waiver of the attorney-client privilege and/ or the attorney work product protection to obtain leniency in federal court sentencing: what is the brouhaha all about?

The guidelines controlling the sentencing of organizations provide for the reduction in an entity's culpability score for self-reporting, cooperation, and acceptance of responsibility. What an organization must do in order to receive the reduction in culpability score changed dramatically in 2004 when additional language was added to Application Note 12 of the U.S. Sentencing Guidelines Manual Section 8C2.5(g) stating that "waiver of the attorney-client privilege and of work product protections is not a prerequisite to a reduction. ... However, in some circumstances waiver of the attorney-client privilege and of work product protections may be required in order to satisfy the requirements of cooperation." Following months of hearings and public comment, the United States Sentencing Commission reversed its position on whether a sentencing court should consider an organization's waiver of the attorney-client privilege and/or of the attorney work product protection in evaluating the organization's "cooperation" as a sentencing factor by proposing to retract the language added by the 2004 amendments. Although that proposal has become effective, it is yet to be determined what the response of the three branches of government will be on the issue of privilege waivers in the context of federal criminal law. This Article gives readers an overview of the development of the use of privilege waivers by organizations seeking credit for cooperation at the time of sentencing for federal crimes, the reaction of both corporations and their lawyers to the waiver issue, and the events leading up to the Commission's change of position.     

“Not to Disclose Information Sources”: Journalistic Privilege Under Article 19 of ICCPR

International law took a significant step in recent years toward protection of journalists' sources and newsgathering processes. The international law journalistic privilege previously had been upheld by international tribunals, but it was not until 2011 that the United Nations Human Rights Committee adopted an interpretation of freedom of expression that included journalistic privilege. The presence of the privilege within freedom of expression, as recognized in Article 19 of the International Covenant on Civil and Political Rights, is important for several reasons. As part of freedom of expression, the privilege may not be overcome without a showing of necessity and proportionality, is not subject to a margin of appreciation, and is entitled to full realization by the 168 nations that have signed and ratified ICCPR.     

On the enforcement of specific performance in Civil Law countries

Proponents of specific performance as a remedy for breach of contract have found support in the alleged use of the remedy in Civil Law countries. However, we provide evidence that specific performance is in fact a rare remedy in Denmark, Germany and France, and under CISG, when performance requires actions to be undertaken, and we relate this to costs of enforcement. We argue that it is administratively costly to run a system of enforcement that renders specific performance attractive to the aggrieved party, and that the Civil Law countries have (like Common Law countries) chosen not to incur these costs of enforcement. This is especially clear in the case of Denmark, where specific performance of actions has been abandoned as a legal remedy.At the normative level, we argue that enforcement costs provides an additional rationale, over and above the rationales of the theory of efficient breach, for damages and against specific performance as the general remedy.     

Comparative effectiveness research under the Patient Protection and Affordable Care Act: can new bottles accommodate old wine?

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the healthcare sector of the United States. PPACA includes strategies to make the American healthcare sector more efficient and effective. PPACA's comparative effectiveness research initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. PPACA's comparative effectiveness research initiative is one in a long line of federal initiatives to address the rising costs of healthcare as well as to obtain better value for healthcare expenditures. The key question is whether the governance and design features of the institute that will oversee the initiative will enable it to succeed where other federal efforts have faltered. This Article analyzes the federal government's quest to ensure value for money expended in publically funded healthcare programs and the health sector generally. This Article will also analyze what factors contribute to the possible success or failure of the comparative effectiveness research initiative. Success can be defined as the use of the findings of comparative effectiveness to make medical practice less costly, more efficient and effective, and ultimately, to bend the cost curve.     

Special report on taxation. Court of Appeals denies tax exemption based on "substantial commercial purpose"

When viewed against the background of continuing state and federal legislative efforts to limit the availability of tax-exempt status, the Living Faith case could be seen as yet another indication of difficult times ahead for nonprofit providers. Although it is too early to tell whether this will in fact be the case, tax-exempt providers should be aware of the Living Faith case as perhaps the clearest statement from a federal appeals court in recent years that the operation of an enterprise in too businesslike a manner may make it a taxable activity. Tax-exempt providers that now operate or plan to operate ancillary businesses, whether through joint ventures, wholly-owned subsidiaries, or otherwise, should carefully evaluate such activities against the criteria articulated in Living Faith. This analysis is important not only for purposes of determining whether such activities can qualify for tax-exempt status in and of themselves, but also as an indicator of how such activities might affect the tax-exempt status of the provider.     

Tackling Voyeurism: Is The Voyeurism (Offences) Act 2019 A Wasted Opportunity?

The Voyeurism (Offences) Act 2019 amended the Sexual Offences Act 2003 to introduce a new offence that would seek to tackle so‐called ‘upskirting’. Whilst it originated as a Private Members Bill, it was quickly taken over by the Government following a backbench blocking manoeuvre. The Act ostensibly seeks to fill a loophole that exists within the law and to protect the sexual autonomy and inherent dignity of women. Instead, I will argue, the legislation deals with a niche area and is a wasted opportunity. Parliament chose to kick the issue into the long grass, from where it will be difficult to recover, with parliamentary time likely to be scarce over the coming years.     

自我保存的自由——霍布斯不被强迫自证其罪权利思想研究

作为近代政治哲学的奠基人之一,霍布斯关于不被强迫自证其罪权利思想既有传承,也有发扬光大之处。他用自我保存的人性论和契约论首次对其进行了严密的论证。正是自他开始,不被强迫自证其罪权利才第一次获得了近代个人主义意义上的证明,被视为每一个人都不可剥夺的自我保存的自由。其思想于我们当下仍有现实意义。     

证据法的基本权利保障取向

证据法的理性主义传统,既要求通过理性证明的方式去查明事实真相,而非诉诸神明和暴力;又不以追求真相为最高目的,而是将其视为实现正义的手段.这种理性传统,决定了法治国家证据制度具有求真、求善的双重功能,并将公正奉为首要价值,从而奠定了基本权利保障的价值取向.我国证据法学研究和证据制度建设正在经历从义务本位向权利本位转型,权...     

Confidentiality and Privilege for Family and Child Protection Mediation: A Roadmap for Navigating the Innovation,Inconsistency and Confusion

This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the mediator, and the difference between mediation confidentiality and privilege. Further, it will discuss the confusion and inconsistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the protection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand and reap the benefits of mediation.     

For the health of the economy and patent system: rationale and scope of patent attorney privilege

Legal context: There exists, in some countries, a patent attorney privilege.This privilege allows an actual or potential holder of patentrights to withhold from a court communications that it has hadwith its patent attorney. The privilege is not recognized inall jurisdictions and there is variation in the extent of theprivilege in those countries where it does exist. Key points: This article explores the rationale for the privilege in orderto see if there is a sound basis upon which to found it. Througha consideration of the justifications for other legal privileges,the article finds that patent attorney privilege is a justifiableprotection for communications between clients and their patentattorneys. If there was a possibility that the communicationswould have to be revealed in court, this may impact the fulland frank nature of the communications. Such communicationsassist patent attorneys, as professionals with expertise ina specialized field, to provide clients with appropriate andeffective advice. That advice goes directly to the maintenanceand benefit of the patent system and the overall economy. Practical significance: As a result of the variation in the extent of the privilegearound the world, there are moves afoot to reform its operation.This article reveals strong public policy reasons for the recognitionof a patent attorney privilege. These grounds also reinforcethe need to ensure that privilege is not unduly limited in itsoperation in any jurisdiction.     

毒品问题与安全

毒品在全球泛滥,危害着人类安全;吸毒耗费了巨额财富,禁毒需要大量资金,毒品影响着各国经济发展。同时,制毒、贩毒助长国际恐怖活动的蔓延,使国家安全受到了威胁;毒品引发了各种犯罪与社会不稳定因素。冷战后国际禁毒合作加强,但由于毒品问题的跨国性、复杂性,毒品问题还将长期存在。     

A linear model of fine enforcement with application to England and Wales

Fines are the most common sanction against criminal offenders in many countries. Economists have developed models for determining the optimal use of fines. Their models, however, generally abstract from problems of fine enforcement and assume that all fines are collected and that enforcement costs are zero. Criminologists and practitioners, on the other hand, have been very much aware of enforcement costs. Imprisonment for fine default is particularly costly and exacerbates the crowded prison conditions that exist in many countries. This paper extends previous economic models by dropping the limiting assumption of zero enforcement costs. The model is estimated using data from England and Wales and is used to evaluate alternative methods and levels of fine enforcement.     

法学发展的“十字现象”——以物权行为制度与《合同法》第51条为说明主体

由于我国法学发展忽略“十字现象”,民法典不采物权行为制度似已成定论,并决定采用意思主义辅之以交付、登记制度;惟此一制度确有窒碍难行之处,是否即应采用,兹事体大,仍值再予辨证。本文论述不限于理论,并提出数例说明;此外《合同法》第51条规定之误,亦一并叙之。文中分别介绍不采物权行为制度的主要见解,及本文对其之评释;并分举数例以说明不同制度的优劣;同时探讨意思主义下的物权变动模式,其内容涉及法国民法模式、日本民法模式,与我国学者所创设的模式;最后并以法律经济分析法,探究是否应采用物权行为制度与《合同法》第51条规定的交易成本辨析,以为我国民法典立法应采用物权行为制度之佐证。     

Digital Hercules?

Is there a limit to what computers can do? In many areas, the facts of today put the sceptics of yesterday in the wrong. Who would have thought twenty years ago that a chess computer could ever beat the human world champion? With respect to computer programs for solving legal problems, the question is not whether they are possible, for they exist. In law, at least two important questions remain. First, whether such programs can eventually perform as good as, or better than humans. Second, whether the use of computers will alter the law and legal adjudication. These two questions are discussed in this article against the background of a comparison of chess and law. The answers give rise to certain premonitions. If the computer is used as an aid in legal decision making, it should be used in awareness of its limitations and idiosyncrasies.     

Analysing the economic justification for the reforms to social welfare and family law legal aid

The Ministry of Justice plans on saving £450 million per annum from the legal aid budget through reforms contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.Over 60% of these savings will be found by removing whole areas of law and types of problem from the scope of legal aid support. One of the principal justifications for these reforms is the economic imperative; reducing legal aid expenditure is necessary to meet the Government's fiscal targets. This article examined whether these reforms will generate the substantial savings identified in the Government's impact assessment, or whether these costs will be passed on to other areas of government. Data from the Civil and Social Justice Survey were used to model the behavioural responses of people no longer eligible for legal aid under the scope changes. Economic costs were estimated for these responses where they will be incurred by the state, although many of these costs are likely to be underestimates. Many costs could not be estimated including, inter alia, the cost of increased criminality where people seek redress outside of the justice system. The analysis focused on family and social welfare law, which together represent 82% of the proposed savings from the scope reforms. Based upon this analysis, the Government is unlikely to save more than 40% of its prediction. At the same time, these minimal savings could generate inequality of access to justice and overburden an already struggling alternative advice sector. A significant uptake in funded mediation within family law is predicted.     

Getting to Grips with Sexual Grooming? The New Offence under the Sexual Offences Act 2003

In recent years, there has been increased societal concern regarding the dangers posed to children by sexual abuse and other related acts. For the main part, this article examines the new offence of meeting a child following sexual grooming under Section 15 of the Sexual Offences Act 2003. I will address the question of whether the introduction of this offence is likely to meet the Government's aim of providing greater protection for children against behaviour associated with sexual abuse. In particular, I will consider how difficult it will be to prove the existence of a harmful ulterior intent in order to make out the offence and why the Government has opted to create this specific offence rather than utilise the existing law of criminal attempt. I will argue that the new offence is a step in the right direction and that the current protection offered to children will be significantly extended by its introduction.     

The Intent Behind the Cryptic Concurrence That Provided a Reporter's Privilege

Justice Lewis Powell wrote a concurrence in Branzburg v. Hayes that, despite a majority opinion to the contrary, eventually provided room for journalists to claim a privilege against testifying in grand jury proceedings. For decades, scholars and judges have questioned what Justice Powell meant by his concurrence and whether he, in fact, supported a reporter's right to refuse to reveal confidential information. Justice Powell's personal papers and case files, as well as those of his fellow justices, observations of one of his former law clerks, and oral arguments shed light on the reasoning behind Justice Powell's enigmatic concurrence. This article concludes that Justice Powell supported a qualified reporter's privilege, applied on a case-by-case basis.     

After the First Amendment Fails: The Newsmen's Privilege Hearings of the 1970s

The recent jailing and threatened jailing of journalists seeking to protect confidential sources has prompted Congress to reopen debate on legislation providing journalists with a statutory right of confidentiality. This article explores debates over eighty-six newsmen's privilege bills introduced in the House of Representatives between 1972 and 1975, after the Supreme Court of the United States decided Branzburg v. Hayes. The article identifies the primary policy differences, motives and perspectives of key advocates, and reasons for the failure of any bill to become law. It examines arguments for and against a privilege and the four major areas of policy disputes: the range of protections from absolutist to qualified protections, the problem of defining “journalist,” protection of only confidential information or all newsgathering material, and whether a federal privilege statute should apply to state proceedings. In doing so, the article provides historical context to contemporary legislative debates.