RU 486 examined: impact of a new technology on an old controversy

Abortion is an extremely divisive issue in American politics and culture. Prothro begins this Article by analyzing the current legal standards governing reproduction, which draw a sharp distinction between abortion and contraception. Prothro then examines the function of RU 486, demonstrating that it acts both as a contraceptive and as an abortifacient. Because of this dual capacity, RU 486 does not fit neatly into the current legal framework. Prothro concludes this Article by arguing that RU 486 should force the Supreme Court to create a new framework for the "procreative right." Prothro argues that this new framework should treat the procreative right as a continuum, basing legal protections on a close analysis of the rights at stake, rather than on artificial distinctions that do not accurately mirror the physiological process of pregnancy. This new continuum analysis, Prothro contends, will expand and deepen the abortion debate by focusing it on the broader issues underlying the current debate.     

Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights

Abstract: This article analyses the development of administrative human rights in the EU. It demonstrates that the new right to good administration enshrined in Article 41 of the Charter of Fundamental Rights crowns a long process of constitutionalisation of basic administrative rights in the Community. The article discusses the meaning, content, and possible impact of Article 41 of the Charter. It explains, inter alia, the doctrinal basis of a ‘right to good administration’, and its more immediate origins. It also offers a textual analysis and commentary of Article 41. Other rights, which possibly come within the concept of ‘good administration’ but are not included in Article 41, are also suggested. The article concludes with an evaluation of Article 41 of the Charter. It argues that although Article 41 is a significant development in terms of individual administrative rights, it offers a one‐sided vision of the function of administrative law.     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Substantive due process after Gonzales v. Carhart

This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment.The Article concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.     

WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO INVOKE THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Persons with disabilities have a right to effective access to justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This article provides insights on the parameters of that right, including a close examination of the history and text of Article 13, which directly addresses access to justice and other relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses implementation guidance from the Committee on the Rights of Persons with Disabilities, including its guidelines for State Party reports and jurisprudence. The initial reports by eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered. The Committee’s feedback regarding implementation of Article 13 by these eleven States parties is critiqued for being limited and inconsistent. This article then attempts to clarify what effective access to justice actually requires. It does so by focusing on the insights that can be drawn from implementation of Article 13 since the UNCRPD was adopted as well as implementation guidance from the Conference of States Parties, the International Disability Alliance, the World Network of Users and Survivors of Psychiatry and the National Center for Access to Justice. This article concludes with recommendations on how the Committee can improve its guidance on access to justice to help ensure that equal rights will not be illusory for persons with disabilities.     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

Resolving the cultural right-animal right conflict in India: analyzing Article 29(1) through the paradigm of Jallikattu

Cultural rights-animal rights conflict surfaced in India when the 2014 judgment of the Supreme Court banning Jallikattu was outlawed by legislation enacted by the Tamil Nadu Government, for which the protection of cultural rights under Article 29(1) of the Constitution is being claimed. Essential questions pertaining to the interpretation of Article 29(1) and consequential resolution of the conflict in India have arisen, for which, the author envisages an expansive interpretation of Article 29(1), providing more scope for its jurisprudential development. Such interpretation also permits resolution through systematic synchronization of cultural rights with animal rights through proper regulation and implementation.     

From Rogers to Rivers: the rights of the mentally ill to refuse medication

Many individuals with mental illness wish to avoid psychotropic drugs, a type of treatment that may relieve their symptoms only at the risk of unpleasant, even permanent, side effects. In marked contrast to the widely-held view that most patients may refuse any treatment and that even patients with mental illness may reject other psychoactive interventions such as electroconvulsive therapy and psychosurgery, the courts and legislatures have been slow to recognize any right to refuse psychotropic drugs. This Article demonstrates that many of the justifications offered for forcing patients to take unwanted medications are inadequate and that unless treatment refusals are reviewed outside mental institutions, patients' rights will rarely receive appropriate deference. The author analyzes the federal and state litigation to determine whether the courts have fashioned meaningful relief for the mentally ill. The Article concludes that two recent United States Supreme Court decisions have made it impossible for the federal courts to provide adequate protection. By contrast, several state courts have responded to the needs and rights of patients with mental illness.     

The United Nations Convention on the Rights of the Child and the Punishment of Children Under English Law – Public and Private Vices?

The punishment of children in the domestic sphere and in the public domain is an issue of concern for those with care of children or whose interests lie in the protection of children’s human rights. How children are treated when they are judged to have broken rules reveals fundamental approaches to the welfare of those who have yet to reach adulthood. The effect of the United Nations Convention on the Rights of the Child in respect of how children are punished, whether in the home or as transgressors of criminal law, may be examined through two distinct but linked spheres: the private and home life context of domestic or personal punishment, and the public domain of state punishment of children in terms of criminal responsibility under English Law. Both spheres reveal attitudes towards the rights of children which suggest how human rights are accorded to particular groups in applying international obligations to a state’s domestic provision. This article seeks to explore some issues of compliance with Article 19 (the physical chastisement of children), Article 37 (the imprisonment of children being a ‚last resort’) and Article 40 (the minimum age of criminal responsibility) of the United Nations Convention on the␣Rights of the Child. The application of the rights of children and the operation of the ‚best interests’ of the child in applying Articles 19, 37 and 40 suggests that there are issues in relation to non-compliance which indicate a diminution of the separate rights of children under English Law in particular and in the operation of the best interests of the child. Penny Booth is a Reader in Law at Staffordshire University Law School.     

Mandating interoperability of interpersonal communications services in an ecosystems competition context

With the adoption of Article 7 of the Digital Markets Act, the EU has taken a progressive approach to mandating horizontal interoperability of number-independent interpersonal communications services. This legislative measure addresses the structural competition challenge posed by direct network effects, which tend to lock users into established messaging platforms. However, it is not entirely clear how, if at all, the Commission should implement this interoperability mandate. To shed light on this matter, we present an ecosystems competition context where these messaging services transition into digital ecosystems to create value from user-generated data and attention. Within this context, we find interoperability mandates like Article 7 a plausible solution to the structural competition problem, although much is yet to be done to sharpen these mandates against the intricate inter-ecosystem dynamics and to empower multi-homing users in a post-interoperability world. Achieving this goal requires collaborative efforts not only from sector regulators responsible for overseeing these mandates but also from antitrust and data protection authorities.     

The new economic credentialing: protecting hospitals from competition by medical staff members

This Article addresses hospitals' use of economic criteria to determine an individual's qualifications for staff privileges. Hospitals are resorting to economic conflict-of-interest credentialing policies in an attempt to ensure physician's loyalty and maintain their own economic viability. Physicians, however, argue that entrepreneurial activities are necessary for them to meet the economic challenges posed by declining reimbursements and rising insurance costs. The Article surveys the numerous legal theories that physicians (and, in some cases, the federal government) could employ in attacking these new types of credentialing policies and concludes that, on balance, hospitals should be able to implement their policies in ways that minimize liability in most jurisdictions. The Article concludes by discussing other issues that economic credentialing policies raise, including those implicating tax-exempt status and nonlegal considerations.     

Posthumous reproduction and the meanings of autonomy

In recent years there has been considerable debate over the legal and ethical issues associated with posthumous reproduction. This article analyses recent cases and legal regulation of reproductive technologies in Australia. The issues associated with posthumous reproduction are explored through a consideration of the nature of an individual's interest in their reproductive material. The suitability of a property-based model as a means of conceptualising interests in reproductive material is explored. The article concludes that the issues in this area need to be analysed in terms of autonomy interests that are understood relationally.     

Whose body is it anyway? Human cells and the strange effects of property and intellectual property law

Whatever else I might own in this world, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin, other than with the components of the tangible corpus that all would recognize as "me"? The law, however, does not view the issue so neatly and clearly, particularly when cells are no longer in my body. As so often happens in law, we have reached this point, not by design, but by the piecemeal development of disparate notions that, when gathered together, form a strange and disconcerting picture. This Article examines both property and intellectual property doctrines in relation to human cells that are no longer within the body. In particular, the Article discusses the Bilski decision, in the context of life science process patents, and the Molecular Pathology case, in the context of gene patents. For patent law, the Article concludes that the problem lies not with the fact that genes constitute patentable subject matter, but rather with the extent of the rights that are granted. For both property and intellectual property law, the Article concludes that a more careful application of basic legal principles would better reflect the interests of society as a whole and the interests of individual human subjects, as well as the interests of those who innovate.     

The obligation to provide “non-personalised” search results under the Chinese E-commerce law

Pursuant to Article 18(1) of the Chinese E-Commerce Law, e-commerce business has an obligation, when providing search results for goods and services based on consumers’ hobbies, consumption habit, or any other traits, to provide them with options that do not target their identifiable personal traits. The law does not provide any elaboration on the precise scope of application of the said provision. Yet, a plain literal interpretation of this obligation may lead to a broad requirement where the business operator has to provide a truly random “non-personalised” set of search results in all circumstances whenever personalised services are provided. Such an interpretation is in all likelihood unreasonable and impractical. This article argues that the proper interpretation of Article 18(1) should be based on its regulatory purpose to protect the lawful rights and interests of consumers. It further considers the precise types of rights and interests that ought to be protected by Article 18(1), and concludes that its appropriate scope of application should be limited to targeted personalisation of search results, which infringe on the consumers’ right to obtain true information and entitlement to human dignity. Personalisation which does not violate the said right and entitlement, should not fall within the regulatory ambit of Article 18(1).     

China and the International Covenant on Civil and Political Rights: Prospects and Challenges

This article looks at China's engagement with internationalhuman rights treaties and the extent to which this is bringingunderstanding of, and compliance with, international human rightsnorms as a background to China's possible ratification of theInternational Covenant on Civil and Political Rights (ICCPR).It explores, in respect of two particular articles in the ICCPR,Article 14 and Article 6(2), where China stands with its currentdomestic legislation and practice in terms of conformity andargues that there still needs to be significant legal reformin the area of fair trial issues and the use of death penaltybefore ratification is possible. Finally, it looks at the stateof civil and political rights in China and the problem of democracyand concludes that although China will unquestionably ratifythe ICCPR, change will still be gradual.     

Transgender Family Law

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the past, some courts viewed a parent's gender transition as a sufficient reason to terminate parental rights. Today, the law has shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of children born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical suggestions to ensure that transgender people are able to protect their families and their parental rights.     

The Evanston initial decision: is there a future for patient flow analysis?

This Article analyzes the October 2005 Initial Decision of the Federal Trade Commission Administrative Law Judge ordering Evanston Northwestern Healthcare Corporation to divest Highland Park Hospital on the grounds that the January 2000 merger of the entities violated Section 7 of the Clayton Act. In particular, this Article focuses on the ALJ's discussion of the use of patient flow analysis and the Elzinga-Hogarty test in defining relevant markets in hospital merger cases. Despite the ALJ's explicit rejection of the Elzinga-Hogarty Test and patient flow analysis as irrelevant and inappropriate in defining markets in the highly differentiated Hospital market, the author concludes that the ALJ's rejection of patient flow analysis likely was a response to misplaced and over-reliance on patient flow analysis by a number of courts in past prospective government challenges to hospital mergers as evidenced by the fact that the ALJ's analysis of competition and competitive effects relied upon, and thereby implicity endorsed, the use of patient flow analysis for certain purposes. Finally, the author concludes that patient flowanalysis, when used appropriately, should continue to be used as a preliminary step in geographic market definition and competitive effects analysis.     

Owning a piece of the Doc: State law restraints on lay ownership of healthcare enterprises

This Article provides an analytical framework for assessing state regulation regarding lay ownership of healthcare entities. The author suggests there are three categories of state regulation restraining lay ownership, each focused on a particular stakeholder in healthcare transactions: provider, patient, and payor. These regulatory paradigms are analyzed through a discussion of three state approaches (California, Illinois, and Florida), each exemplifying a particular stakeholder schema. The Article then highlights shortcomings of the three schemas, pointing out formal frustrations, application inequities, and doctrinal flaws. The author concludes that any successful state regulation of lay ownership in healthcare should incorporate aspects of all approaches in pursuit of accommodating the needs of all three stakeholders.     

支付命令与安全程序——美国《统一商法典》第4A编的核心概念及对我国电子商务立法的启示

电子资金划拨是电子商务的重要环节。作为世界上调整大额电子资金划拨最完善的法律,美国《统一商法典》第4A编创设了“支付命令”和“安全程序”等全新的概念与规则。支付命令不仅是4A编所界定的支付指令,而且对确定4A编的调整范围和大额电子资金划拨各当事方权利义务具有重要的意义。安全程序是支付命令的认证手段,其相关规则将欺诈损失在各当事方间进行了分担。美国《统一商法典》第4A编对我国电子商务立法具有如下启示:“功能等同”方法不是电子商务立法的唯一思路,我国立法应借鉴美国《统一商法典》第4A编的经验,考虑创立具有全新概念、全新规则专门调整电子商务特定关系的法律;我国电子商务法应是一个法群,而不是一部法典;我国电子商务立法应就电子化权利的转让问题作出规定。     

The prohibition to abuse one's human rights: A theory

Supporters of communism, national socialism and radical Islamism, but also people who incite racial hatred or deny the Holocaust, see their rights severely curtailed by the abuse clause of Article 17 of the European Convention on Human Rights. To make sense of this provision, this paper first introduces the distinction between abusable and non‐abusable rights in order to delimit the scope of Article 17. Then, this paper suggests a “test” to spot instances of abuse of human rights by borrowing the concept of performative self‐contradiction from speech act theory. Article 17 is reconceptualised as dealing with conduct that self‐contradictorily uses rights but simultaneously denies their very idea. In this way, it becomes possible to make sense of and to unify the disparate case law that Article 17 has generated so far: it equally targets political human rights abuse, attacking liberal democracy in general; and exclusionary human rights abuse, attacking the rights of other people.