Advanced directives,the right to die and the common law: recent problems with blood transfusions

The Australian common law suffers from a lack of judicial authority on the right to die, in particular the right of patients to make anticipatory decisions to refuse treatment. Recent cases concerning the right of patients to refuse life-saving blood transfusions have highlighted the need for a substantial judicial clarification of this area. This article critically examines one of the most recent Australian cases in detail and compares its approach with those from other common countries. After taking this comparative analysis the article puts forth a common law model of anticipatory decision-making and examines how that model might work in the context of current legislative frameworks.     

The impact of economic theories on the law in market relations

The impact of economic theories on legal development, thinking and practice is undeniable. This is particularly true for neo-classical and institutional economics. Neo-classical economics are based on model assumptions of human behaviour such as pursuit of personal advantage, individualistic goals, complete information and at the same time law obedience which are the foundations of the functioning of the market mechanisms. The assumption leads to an almost mystical belief in the self-regulatory power of the market and a strong disdain and disapproval of the State. The concepts of a minimal State and de-regulation of all social relations follow from there. This article argues that model assumptions are valid scientific tools, as long as they are not taken to reflect the real world which is populated by real people that are not necessarily behaving like homines oeconomici. Preaching de-regulation and the dismissal of the State can prove simplistic and even dangerous and may lead to financial and economic crises like the ones witnessed in recent years. Institutional economics part from these empirical findings. They do not question individualism and the pursuit of egoistic objectives of market-participants, but they insist on inherent risks of this mechanism which stems from opportunistic behaviour, lack of information and transparency and the limits of trust. Property economists deduct from there that sustainable and dynamic economic development is unthinkable without well defined property title, the distinction of property and possession and credit securities. These institutions cannot be self-regulatory but need a clear legal frame, in other words rules established by a State. Transaction costs economists understand the danger of opportunistic behaviour and a corresponding systemic lack of trust in the negotiation, conclusion and execution of contracts. They underline the necessity of institutions which are capable of limiting these dangers and thus reducing transaction costs. Institutions may be customs, informal arrangements and formal law. At the end two examples are presented-real estate transactions and post-patriarchal family relations-to test the utility of these considerations.     

Freedom of information and data protection law – A conflict or reconciliation?

The interface between the Freedom of Information and Data Protection Acts is complex and reconciling the two regimes has required considerable legislative contortion. The emerging body of jurisprudence relating to s.40 of FOIA demonstrates that assessing the operation of the exemption requires a degree of sophistication, balancing the rights of FOIA applicants and the public with the privacy rights of public officials.     

The next steps in academic integrity — education,awareness, norms,duty and law

We conducted and analyzed several internet surveys in order to understand the profile of global research integrity and ethical awareness, encompassing global population distribution. These were (1) the global distribution of Committee of Publishing Ethics (COPE) membership; (2) the global distribution of “Integrity” or “Ethics” journals; (3) the level of academic integrity awareness in European higher education institutions and (4) awareness of academic integrity in the top universities of Asia and Africa. The results of this survey series highlight seriously imbalanced awareness of research integrity and publishing ethics across the world, especially in developing areas with the highest population density. We therefore propose a new index, the “Academic Integrity Awareness Index” for future discussions across the linked spheres of publishing and research.     

Automatism: comparison of common law and civil law approaches--a search for the optimal

This article reviews common and civil law approaches to automatism with discussion of legal definitions and the conditions in which automatism occurs. The common law approach to sane (exogenous) and insane (endogenous) automatism is examined. Despite a change in the law, which obviates mandatory incarceration for all persons found not guilty on the basis of insane automatism, the stigma of insanity remains. A number of Continental jurisdictions, though, have adopted an approach divorced from judgmental labels, whereby acts, which result from automatism, are classified under the rubric of unconsciousness. The article draws upon this approach, analyses alternatives to insane automatism and proposes instead an analysis by reference to "cognitive dysfunction", thereby removing all reference to the concept of insanity.     

Criminological theory in the digital age: The case of social learning theory and digital piracy

To date, few studies had attempted to extend existing theories of crime to technology driven crimes, such as digital piracy. To address this gap in the literature, this study explored the ability of Akers’ social learning theory in explaining the likelihood of engaging in digital piracy. Also explored was the extent to which the social learning process mediated the impact of several noteworthy correlates of digital piracy among college students attending different universities (n = 585), relying on a structural equation modeling (SEM) framework. The findings were modestly supportive of social learning theory as it may apply to digital piracy. The findings are discussed in the context of extending existing theories of crime to account for contemporary technology driven crimes, such as digital piracy. Policy implications and direction for future research are discussed.     

健全和完善公民表达权的法律保障机制

党的十七大报告把"表达权"列为公民四权之一,并强调要依法保障,这对我国推进社会主义民主法治、构建和谐社会以及大力发展文化创新都具有非常重要的意义。然而,现行法律、法规以及司法资源对"表达权"的保护相对不足,因此,需要进一步健全和完善公民表达权的法律保障机制。     

The evolution of the political criteria for accession to the European Community, 1957–1973

This article describes the evolution of political conditions for accession to the European Community from 1957 to 1973 on the basis of the responses of the Community and national parliaments to applications for association (Article 238 EC Treaty) and membership (Article 237 EC Treaty) and to a US foreign policy initiative. It challenges the thesis that the European Community was originally uninterested in the political nature of its members as long as they were non‐communist and that the Community made a volte face in 1962 in reaction to a request for an association agreement by Franco's Spain. It argues that the Copenhagen political criteria, except minority protection, were firmly established by 1973 after a series of pronouncements and decisions by the European Parliament, national parliaments (both 1962), the Commission (1967) and the Council (1973). The article aims to contribute to the early history of the constitutionalization of the Union and discusses how demands from outsiders prompted the Six to define the constitutional requirements for (candidate) members. It is partly based on new archival research.     

‘Yeah but,no but’ – Pinnock and Powell in the Supreme Court

This note considers the Supreme Court decisions in Manchester CC v Pinnock and Hounslow LBC v Powell. It is argued that there are a number of remaining outstanding questions around proportionality, including: deference; section 89, Housing Act 1980; procedural issues; ‘publicness’; and the future landscape.     

The right to an effective remedy in European law: significance,content and interaction

China-EU Law Journal - One of the basic rights and a general principle of the European Union is the right to an effective remedy. In the paper is presented the basis of the right to an effective...     

Anthropological facial ‘reconstruction’ – recognizing the fallacies, ‘unembracing’ the errors, and realizing method limits

Despite being practiced for over the last 200 years, facial approximation methods remain in their infancy as the soft tissue prediction methods employed have not been tested and justified. Scientific testing is the only way forward and much of it is needed. The lack of systematic scientific tests in the past has enabled many misleading notions to become established. Many of these notions appear to have arisen and been sustained as a result of practitioner biases--this is clearly evident even in the name commonly used to describe the method of building faces from skulls, for "facial reconstruction" implies everything the method is not, e.g., technical/scientific, exact, and credible. Although facial approximation methods are useful for forensic investigation (even if they do not generate identifications through true positive recognitions of the faces), the public should beware of the marketing and political ploys employed within the profession. These ploys give rise to some impressive, but unjustifiable claims--but do not just take my word for it; evaluate the evidence for yourself with disregard to the indoctrination waged by the facial "reconstruction" field in general, including that promoted by what I have had to say here. Use your own reason and intellect and see which conclusions you reach.     

Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

Plays,Performances and Power Struggles – Examining Copyright's ‘Integrity’ in the Field of Theatre

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity‐based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity‐based objections’ – is crucial to theatrical practice.