Euthanasia: a reply to Bartels and Otlowski

This article counters arguments made by Bartels and Otlowski in 2010 regarding euthanasia. It suggests that the authors over-emphasised the importance of individual autonomy in its bearing on the euthanasia debate. Drawing on literature concerning elder abuse as well as the "mercy-killing" cases reviewed by Bartels and Otlowski, the article contends that legalising euthanasia may increase the risk that some patients are pressured, inadvertently or deliberately, to request access. Safeguards to detect and deter pressure may be of limited effectiveness against such pressure. Regarding slippery slope arguments, the article discusses the potential for an Australian euthanasia system to eventually be extended in scope to encompass mental suffering. The article encourages consideration of long-term potentialities, including changes in macro-economic conditions.     

对普通累犯几个问题的思考

累犯制度作为一项基本的刑罚制度 ,已经为世界各国所广泛认同。我国刑法对普通累犯和特殊累犯作了较为详细的规定。其中 ,普通累犯制度在许多方面存在一定分歧。笔者对其中的一些问题进行了思考 ,提出将严重过失犯罪、法人犯罪纳入累犯制度打击的范围之内 ,并就普通累犯成立的时间、刑度、罪名等条件提出了几点与通说较为不同的看法。     

Other people's money: a reply to the Joint Commission

In a response to Professor Liang's earlier article expressing concern regarding the Joint Commission's Sentinel Event Policy ("SEP"), the General Counsel of the Joint Commission disagreed with the criticisms of the SEP. In this Comment, Professor Liang replies to the Commission's position, indicates that resources devoted to legal issues created by the SEP are not available for patient safety, and that the goal of patient safety may be better served by focusing on near misses rather than sentinel events. Finally, he concludes that the Joint Commission and its critics have the same ultimate goal, and that a cooperative approach which includes federal legislation to protect safety information is essential.     

Minors' capacity to refuse treatment: a reply to Gilmore and Herring

Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity-an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician's point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor's understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently, a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.     

“商人”的类型化思考

为了实现商事活动的法治化,对商人内涵予以界定是必要的.由于商人在现实生活中复杂的表现形式,如果在立法时将“商人”作为一个抽象概念,则难免会遭遇涵摄不能的立法困境;这就需要我们在抽象概念之外再探讨其他适宜的法学方法论.以类型化的方法对“商人”予以界定不仅必要而且可行.商人应当指依法登记的各类商事组织及个体工商户,以及虽未登记,但具有其他商人要素的人;其他商人要素包括使第三人善意信赖、开展营业、从事商行为等.商人要素的判断应以商事法律适用的必要为前提.     

行政法教学的省思:期待续集

<正>亲爱的罗伊·斯格特兰德:我带着极为浓厚的兴趣阅读了你与狄克·皮尔斯对话的文章,而且我也禁不住要对你们长期以来的关于行政法教学范围的讨论予以回应。你使用影片“五部轻松的戏剧”(five easy pieces)来形成你自己的思想。依照好莱坞的传统,行政法教学的续集已经开始谱写。学生应该学习两个学期的行政法:一个学期主要侧重于行政程序(行政法Ⅰ),另一个学期则     

Inaccurate Conception: ACB v Thomson Medical

This note considers the decision of the Singapore Court of Appeal in ACB v Thomson Medical in which the plaintiff sought damages for the upkeep costs of a child conceived using sperm from someone other than her husband as a result of negligence by a fertility clinic. The Court held that upkeep costs could not be recovered as a matter of public policy, but recognised a new head of loss, namely damages for loss of genetic affinity. In a controversial ruling, the Court quantified these damages at thirty per cent of the upkeep costs of the child. While holding that punitive damages could be recovered outside the categories recognised in Rookes v Barnard, the Court rejected such an award on the facts of the case.     

进一步反思“执行难”

当前 ,进一步反思“执行难”问题具有特殊重要的意义。首先 ,进一步反思“执行难” ,认真剖析其形成的主客观原因 ,有助于我们站在整个社会发展的高度 ,历史地、冷静地认识解决“执行难”问题的艰巨性和长期性 ,以避免被眼前的阶段性成果迷住双眼 ,裹足不前。其次 ,进一步反思“执行难” ,仔细考察其形成原因 ,有助于我们发现“病灶”后对症下药 ,积极筹划、设计解决“执行难”问题的长短期方案 ,并进一步明确法院在解决这一问题的历史进程中所应扮演的角色和努力的方向。再次 ,进一步反思“执行难” ,帮助当事人和社会舆论走出各种认识误区…     

Thinking about gender and judging

Reviewing the work of three political scientists who studied women judges provides an opportunity for rethinking the concept of gender and how to do gender-based research. Scholarship on women judges sometimes veers toward an essentialist view of women and gender differences, despite empirical evidence to the contrary. A close reading of this early work reveals some essentialist missteps but also offers strong examples of research across many methodologies that should serve as exemplars for current research across disciplines. If we move beyond the question of whether women decide cases differently from men, using sex as a variable, like other gender-based research strategies, can provide useful feminist insights.     

Defending the sanctity of life principle: a reply to John Keown

This article is a response to Professor John Keown's criticism of my article "Finding a Way Through the Ethical and Legal Maze: Withdrawal of Medical Treatment and Euthanasia" (2005) 13(3) Medical Law Review 357. The article takes up and responds to a number of criticisms raised by Keown in an attempt to further the debate concerning the moral and legal status of withdrawing life-sustaining measures, its distinction from euthanasia, and the implications of the lawfulness of withdrawal for the principle of the sanctity of life.