Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.     

Boundaries: The Balkans,the Law,and the Sacred

The recent Balkan Wars are a phenomenon of violence across psychicboundaries, the value-based cosmological Worlds that humans necessarilycreate as the substantive content of consciousness. This violenceresults from the human tendency to consider alien values perceivedacross a psychic boundary as a threat. This violence cannot beeliminated by eliminating these boundaries because these boundariesthemselves cannot be eliminated. Instead, the problem can be addressedonly in terms of establishing public institutions that honor a pluralismof values, thereby attenuating the threat that alien values pose.     

法律空间建构的逻辑演进

近年来,学术界越来越多的学科正在向空间理论研究转向.法律的空间性研究也具有一定学术和应用价值.本文以于法律空间性为研究视角,从三个不同的维度进行逻辑推演:维度构成、作用机制和研究方法.本研究的目的是探索利用抽象的数学模型来建构一个法律空间的可能性,特别是在信息技术高速发展的背景下,借鉴卢曼开创的系统法学方法论,以解释、...     

试论知识产权权利边界的确定方法

知识产品的无体性导致了知识产权权利边界确定上的困难。知识产品固有的有形载体有助于知识产权权利边界的确定。同时，知识产权公示制度对于知识产权权利边界的确定亦具有重要意义。尽管可自动取得的著作权和一些新型知识产权并不以登记为获权前提，但登记却是知识产权公示制度中对权利边界界定最具价值的部分。     

The Loosening of Professional Boundaries and Restructuring: The Implications for Nursing and Medicine in Ontario, Canada

This paper suggests that the combination of health care restructuring, legislation expanding, and redefining a regulated health profession in Ontario, Canada, has reduced medical dominance and increased managerial dominance of health care professionals. The paper focuses on nurses and doctors, and examines the effects of the Regulated Health Professions Act and the changes occurring within the health care system on their political, clinical, and economic autonomy. It argues that there has been a redistribution of power in the health care sector and suggests that the present autonomy of health care professionals is limited, and may be limited even further as the technical side of health care is prioritized over the indeterminate side.     

The Borrowed View: Privacy, Propriety, and the Entanglements of Property

A dominant characterization celebrates property as a means to attain privacy and autonomy. Drawing on recent scholarship, I compare this idea with a proprietarian perspective, which emphasizes the ways in which private ownership comes freighted with public responsibilities. The garden, I shall argue, reveals both dimensions to property. Drawing from gardening debates over the past century and an empirical survey of gardening in Vancouver, Canada, I conclude by arguing, first, that the ends of property are more diverse than we suppose, and second, that these two conceptions should in fact be thought of not as incompatible and opposed, but as entangled and interrelated. While judicial and academic evaluations tend to rely on a binary view of property, so that privacy and propriety seem to live in different spaces, my findings suggest a more fluid cohabitation.     

审判管理：功效、局限及界限把握

审判管理是对审判活动的组织、协调和监督。当前加强审判管理的特点,包括审判管理组织与管理措施的强化,管理的严格性与精细化程度的提高,信息平台的构建与技术手段的充分利用,管理活动中行政元素的强化以及对审判的渗入。这种状况既有国家管理的宏观背景支持,又有法院自身的原因。其现实意义是有利于保障审判的公正、效率、廉洁和司法统一性。但也有不符审判规律及不规范的问题,还可能扭曲审判行为。应当从“法院逻辑”即“裁判逻辑”中寻求司法建设的常识,重视审判资源配置,强化基础意识防止轻重倒置,同时继续按照司法规律推动法院改革;注意审判管理重在审判权外部展开,实现“以外促内”;限制和规范审判管理权干预案件的实体处理;正确把握评查与考绩的方法与限度。     

从主体性到关系性:人权论证的范式转向

人权是时代的观念。通过分析人权的概念要素可以看到,尽管人权争议源于对人的理解不同而体现为人权性质上的争议,但在根本上则在于,它们都属于一种主体性哲学框架下的人权论证理论,从而具有不可避免的缺陷。对人权正当性的追问必然要求实现人权论证的范式转向,即从主体性转向关系性。从关系性视角来论证人权尽管源于青年黑格尔,但只是到当代才由哈贝马斯立足交往行动理论作出了系统的阐明。在实践上,人权论证的关系论转向对进一步深化与推动人权具有重要的意义。     

Above the Boundaries: Ozone Depletion,Equity, and Climate Change*

This introduction examines the global legislative process as it applies to environmental agreements. It argues that this process should be seen as consisting of at least two phases. Phase one seeks to create a broad legislative framework designed to facilitate debate emanating from three different perspectives: science, equity, and economics. Phase one also seeks to attract as many countries as possible to the negotiating process. Phase two then tries to reconcile at least some of the conflicts inherent in these three different starting points.     

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.     

Identities,Boundaries, and Accounts of Women Methamphetamine Users

Drug users often define themselves as functional users and depict others as dysfunctional (i.e. junkies). Previous research on the social identities of drug users has focused on the symbolic boundaries they create to distance themselves from stigmatized others. Investigators have yet to focus on how users account for their own boundary violations. Here, we examine the narratives of 30 former women methamphetamine (meth) users to determine how they make distinctions between functional and dysfunctional meth users (i.e. “meth heads”). The distinctions they make are based on users’ abilities to maintain control of their lives and to hide their use from outsiders. Those who saw themselves as functional but who engaged in behaviors inconsistent with this image accounted for these behaviors to maintain desired identities. We show the complexity of drug users’ identities and illustrate how anti-drug campaigns that provide grotesque caricatures of drug users may prolong drug using careers.     

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes'restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.     

The Complexity of Policy Preferences: Examining Self-interest,Group-Interest,and Race Consciousness Across Race and Political Ideology

Social Justice Research - Research on attitudes toward racial policies has often been limited to a single racial group (e.g., either Whites or Blacks). These studies often focus on the role of...     

Insurers, Claims and the Boundaries of Good Faith

This article examines the refusal of the English courts to award damages for consequential losses following unreasonable delay on the part of insurers in settling a claim. This has the potential to give rise to dire consequences for insureds. These difficulties have been addressed in North American jurisdictions where the concept of good faith has been developed and applied as a means of both compensating insureds and regulating the conduct of insurers. However, a hallmark of English law is that it fails to draw a bright line between the law of contract and the law of contracts. As a result, the policy issues that should inform insurance contracts are excluded by virtue of the notion, imported from the law of contract, that the contractual relationship is a matter of private law and is not, therefore, a means for public regulation of insurers.     

The Complexity of Social Outcomes from Cooperative,Competitive, and Individualistic Reward Systems

Previous research on cooperative and competitive reward systems has investigated the relation between extreme cooperative and competitive conditions, along with an intermediate noninterdependent neutral condition, to numerous outcome variables. This study added two additional conditions to these three usual conditions, between the neutral midpoint and the cooperative or competitive extremes, to see if these intermediate conditions might be distinctive in the outcomes they produced. The study used 240 participants, divided into groups of three that played a board game under these five different reward conditions. Participants' attitudes toward self, others, and task were then assessed and analyzed along with objective measures of performance, measures of self-esteem, state and trait anxiety, and results coded from an autobiographical report in game-defined roles. Results indicated that the intermediate cooperative condition was distinctively different from the extreme cooperative condition in predicted ways, and that the intermediate competitive condition was distinctively different from the extreme competitive condition, but in unpredicted ways. The research also demonstrated that an individualistic condition, which had previously been thought to produce neither a cooperative nor competitive social orientation, in fact produced both, raising questions as to whether reward interdependence, as researchers have defined it, is really the cause of cooperation and competition.     

Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as "sexual outlaws" to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's ca-pacity to invoke fundamental legal rights, the law effectively sanctions "private" or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.