Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

WILLIAM H. REHNQUIST AWARD ADDRESS

The William H. Rehnquist Award is one of the most celebrated judicial honors in the country. ¹ It is given each year to a state court judge who demonstrates the "highest level of judicial excellence, integrity, fairness, and professional ethics." ² The 2004 recipient, Judge Leonard Edwards, is the Supervising Judge of the Santa Clara County, California juvenile dependency court. ³ He is the first juvenile court judge to receive this prestigious award. During the 24 years he has held his position, Judge Edwards has worked extremely hard to improve how the juvenile court system serves troubled families. He has founded two organizations to achieve this end, the Juvenile Court Judges of California and the Santa Clara County Domestic Violence Council. ⁴ Judge Edwards serves as a lead judge in San Jose's Model Court, which is one of twenty-five jurisdictions in the country which utilizes new ideas and techniques to improve adoption rates for children in foster care. ⁵ Moreover, he has worked as president of the National Council of Juvenile and Family Court Judges. ⁶ Below is the speech he gave after accepting the award from U.S. Supreme Court Justice Anthony M. Kennedy. The speech notes the importance of the award to everyone working in America's juvenile courts.     

'Talking in Fictions': Jennings on Parliament

Sir Ivor Jennings made many ground-breaking contributions to the study of Parliament. Among them are two books written in the 1930s, while Jennings was at the peak of his powers: Parliamentary Reform in 1934, ¹ and Parliament in 1939. ² This essay offers an assessment of Jennings' scholarship on Parliament. It commences with some observations on his method, and this is followed by an outline of the argument in Parliament and an appraisal of the book's originality and ongoing significance. The essay closes with some brief remarks concerning Jennings' Parliamentary Reform .     

Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error

The purpose of this paper is to investigate the feasibility of claims for psychiatric damage following the death of a family member, where that death has been caused by medical error. ¹ The relative's position is a subject of heightened interest since the exposure of the plight of the parents involved in the UK organ scandal, ² and in the case of an iatrogenic death it is, of course, the family who are essentially the focus of the law's attempts to provide redress. Whilst the cases of deceased patients' relatives seeking damages for mental harm are inherently problematic in light of the restrictive secondary victim criteria applicable to psychiatric damage claims, a close look at the rules which permeate this area of compensation reveals that denying compensation to the relative suffering psychiatric harm is difficult to sustain. ³     

THE WRONG WAY TO MANDALAY: THE MASSACHUSETTS SELECTIVE PURCHASING ACT AND THE CONSTITUTION

The United States cannot and should not approach the world as fifty states and thousands of municipalities who embark on setting their own foreign policy whenever it suits them. ¹
It's a core principle of democracy that the federal government should not intrude on state powers to spend local tax dollars unless there's an overwhelming federal interest at stake. ²     

CHILDREN'S LAWYERS IN CALIFORNIA FAMILY LAW COURTS

There simply is no dos-and-don'ts checklist that will address the myriad issues facing children's attorneys and eliminate the difficult questions that face them. Conscientious lawyering is the key to alleviating potential ethical culpability. This requires the commitment of significant time to learn about the child client and his or her special needs. Unique responses are often required to meet individual problems. Beyond that, attorneys for children are left to determine their own subjective criteria to guide their representation.¹
The child is a person, not an object of concern.²     

The Stable Isotope Ratios of Marijuana. II. Strontium Isotopes Relate to Geographic Origin

Abstract:  Effectively addressing marijuana trade is aided by understanding marijuana geographic sources. We analyzed the ⁸⁷Sr/⁸⁶Sr of marijuana samples grown in 79 counties across the United States to determine if a primary geologic signal is retained in marijuana, which could therefore be useful for geographic sourcing. The marijuana results were compared with modeled bedrock ⁸⁷Sr/⁸⁶Sr values based on ⁸⁷Rb decay rates and a generalized geologic map of the U.S.A. A significant correlation was observed between marijuana ⁸⁷Sr/⁸⁶Sr and modeled bedrock ⁸⁷Sr/⁸⁶Sr. Although values clustered near the 1:1 relationship, there was a predominance of positive anomalies, perhaps attributable to carbonate bedrock. A small number of negative anomalies were also observed, which were generally associated with granitic bedrocks. These results suggest that strontium isotopes in marijuana record the geographic origins of marijuana, and that refinement of the base strontium map (or strontium isoscape) and improved understanding of other strontium sources would be productive.     

FAMILY MEDIATION IN EUROPE

The Committee of Ministers of the Council of Europe adopted Recommendation Number (98) 1 titled "Family Mediation in Europe" on January 21, 1998, at the 616th meeting of the Ministers' Deputies. This recommendation focused on the use of mediation in resolving family disputes. After a brief introduction, this article reprints the recommendation. ¹     

COMMUNITY, BUSINESS ETHICS, AND GLOBAL CAPITALISM

The absorption of the cultural sphere into the commercial sphere signals a fundamental change in human relationships with troubling consequences for the future of society. From the beginning of civilization to now, culture has always preceded markets. People create communities, construct elaborate codes of social conduct, reproduce shared meanings and values, and build social trust in the form of social capital Only when social trust and social exchange are well developed do communities engage in commerce and trade…. When the commercial sphere begins to devour the cultural sphere … it threatens to destroy the very social foundations that give rise to commercial relations. ¹     

A PREVIOUSLY UNIMAGINABLE RISK POTENTIAL: SEPTEMBER 11 AND THE INSURANCE INDUSTRY

The attacks [of September 11 th] have revealed a previously unimaginable risk potential. ¹     

Rules, Principles and Ombudsmen: Norwich and Peterborough Building Society v The Financial Ombudsman Service

The judgment in Norwich and Peterborough Building Society v the Financial Ombudsman Service ¹ provides good evidence of the drawbacks of rule based adjudication, and the need for ombudsmen to be able to rely on principles of fairness. Further, it demonstrates, to those who associate ombudsmen and general standards of fairness with arbitrary and subjective decisions, ² how such determinations are constructed through, and constrained by, the legal context of codes, rights, etc in which the assessment is made. The decision also demonstrates an attempt to create a division of labour when courts and ombudsmen operate alongside each other, with the courts having a monopoly on the interpretation of legal rules, and ombudsmen being left to determine, with only minimal restrictions, a principled basis for the assessment of fairness.     

NEW APPRAISALS OF OLD PROBLEMS: REFLECTIONS ON THE DELAWARE APPRAISAL PROCEEDING.

A review of this testimony clearly shows that testimony as to value by experts is of such limited use to a trier of fact. Vice Chancellor Hartnett ¹     

Medical Malpractice Implications of PSA Testing for Early Detection of Prostate Cancer

The best defense against malpractice is—as any good lawyer will attest—the best care to the patient, honestly and sensitively communicated.¹     

WHO'S ON FIRST: CERCLA COST RECOVERY, CONTRIBUTION, AND PROTECTION

I told him it was law logic - an artificial system of reasoning, exclusively used in courts of justice, but good for nothing anywhere else. ¹     

INTEGRATIVE SOCIAL CONTRACTS THEORY: ETHICAL IMPLICATIONS OF MARKETING CREDIT CARDS TO U.S. COLLEGE STUDENTS

It may be said that to take advantage of a man's credulity, to exploit his misapprehensions, to capitalize on his ignorance is morally reprehensible—and this may well be the case I do not know.—Nicholas Samstag in The Engineering of Consent ¹     

WINE WARS—DIRECT SHIPMENT OF WINE: THE TWENTY-FIRST AMENDMENT, THE COMMERCE CLAUSE, AND CONSUMERS'RIGHTS

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. ¹     

CORPORATE MAKAHIKI: THE GOVERNING TELOS OF PEACE

Lono presided over the annual makahiki celebrations, which where held on the island for four consecutive months, usually from October or November through February or March. This was a time of ritual, sports competition, offerings to the chiefs, divination of the fruitfulness of the coming year, and much feasting and hula. During the makahiki war was forbidden, people did little work and enjoyed themselves. ¹     

THE REVENGE OF THE TRAIL SMELTER: ENVIRONMENTAL REGULATION AS EXPROPRIATION PURSUANT TO THE NORTH AMERICAN FREE TRADE AGREEMENT

[N]o state has the right to use or permit the use of its territory in such a manner as to cause injury … in the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. ¹
Under the polluter pays principle, the community effectively "owns" the environment, and forces users to pay for damages they impose. By contrast, if the community must pay the polluter, the implicit message is that the polluter owns the environment and can use and pollute it with impunity. ²     

THE EVOLUTION OF THE GOVERNMENT-BUSINESS RELATIONSHIP IN THE UNITED STATES: COLONIAL TIMES TO PRESENT

Everything has a history. At least part of the answer to any question about the contemporary world can come from studying the circumstances that led up to it⃜The more you understand about these past influences, the more you will know about the present subject to which they are related.¹     

Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009

There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party‐political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.