Betrayal of confidence in the Court of Appeal

In overturning Latham J's judgment in R v Department of Health, Ex Parte Source Informatics Ltd. that anonymisation does not obviate breaching a personal confidence, the Court of Appeal holds that where the duty of confidence arises in equity it does not prohibit the confidant using the confided information without the consent of the confider if this does not treat the confider unfairly (relative to the Court's view of the confider's legitimate interests). We argue that this principle--by bringing fairness to bear on the scope of the duty of confidence rather than on whether a breach of it may be lawful--has no authority in usable precedents; that the Court's interpretation of fairness in applying this principle is, in any event, incompatible with the Data Protection Act 1998 (in part because the Court has too narrow a conception of privacy); that the Court errs in holding that neither anonymisation of personal data nor use of anonymous data falls under the Data Protection Act; and that the Court's insensitivity to the vulnerability that leads patients to disclose information about themselves to health professionals for their treatment, leads it to misidentify the basis of the duty of confidence in such disclosures. The Court of Appeal's reasoning does not clarify the duty of confidence, but virtually abolishes it in the face of competing commercial and research interests.     

THE CONSTITUTIONAL STATUS OF WOMEN: The Burger Court and the Sexual Revolution in American Law

This article analyzes the revolution in Constitutional Law concerning sex discrimination that has been brought about by the Burger Court. It provides an overview of both the doctrinal changes and the policy changes that have composed this legal revolution. It identifies certain policy areas that have troubled the Burger Court during this process and attempts to explain why some policy problems have proved more intractable than others. It concludes with a modest suggestion for dealing with those problems.     

SUPPORT FOR THE SUPREME COURT AS A NATIONAL POLICYMAKER

The most frequent explanations for the endurance of the Supreme Court's policies and of its power as a national policymaker assume public reverence for the Court, widespread support for it as an institution, or broad-based agreement with its policies. Public opinion studies refute most of these assumptions. Our research confirms those studies and shows, in addition, that the Court cannot claim strong support among occasional political activists. It does, however, have a strong constituency among liberal activists and liberal position-holders. We hypothesize, therefore, that the Court's endurance as a national policymaker is explained by special support from one wing of the dominant party coalition that, because of its strategic location in the complex national policy process, is able to obstruct broadly-based attacks on the Court's authority and policy. Such attacks gain force, however, when critical elections alter the dominant party coalition and therefore weaken the hold of the Court's ideological allies. Yet even then—or at least so far—the Court and its policies have prevailed against various court curbing efforts.     

“Friends as Foes: The Amicus Curiae Participation and Effectiveness of the American Civil Liberties Union and Americans for Effective Law Enforcement in Criminal Cases, 1969–1982”*

Scholars have long recognized that interest groups realize the importance of the courts as policymakers and as vehicles of social and political change. We examined the amicus curiae participation of the American Civil Liberties Union and Americans for Effective Law Enforcement in criminal cases before the Burger Court from 1969–1982. We found that AELE, a conservative law-enforcement organization, has been the most successful interest group as participant as amid. Moreover, we found that criminal law is yet another area of law in which interest groups are using the Supreme Court to achieve and protect their policy interests.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.     

Property Interests in Body Parts: Yearworth v North Bristol NHS Trust

This note analyses Yearworth v North Bristol NHS Trust , in which the Court of Appeal accepted the existence of property interests in parts or products of the human body and considered the applicability of chattel torts where interference with such interests occurs. The writer questions whether the Court's decision to extend the law of bailment in the case was necessary, or whether the law of conversion or negligence should be available as the more appropriate causes of action.     

The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?

The "compulsory jurisdiction" of the International Court ofJustice is not truly compulsory. The Court's jurisdiction isbased on the consent of the parties. States have the optionto accept or not to accept the Court's jurisdiction and cando so under terms and conditions they determine themselves.However, once a State has granted its consent, and when a disputethat falls within the scope of that consent is submitted tothe Court, the State must subject itself to the Court's jurisdiction.It is that legal obligation that is at the root of the term"compulsory".     

THE SUPREME COURTS POST-MIRANDA RULINGS: Impact on Local Prosecutors

Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v. Arizona ruling. This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more. The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971. This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court.     

TROXEL v. GRANVILLE AND THE BOUNDARIES OF THERAPEUTIC JURISPRUDENCE

Troxel v. Granville , a case arising out of the application of a statute permitting court-ordered grandparent visitation based on a judicial determination of the best interest of the child, provided the opportunity for the U.S. Supreme Court to demonstrate its receptivity to therapeutic concerns. The decade preceding Troxel had seen the emergence of a school of thought labeled "therapeutic jurisprudence" that seemed a perfect fit for addressing the subject matter before the Court. In this article, the author discusses the rise of therapeutic jurisprudence, its relevance to the subject matter before the Court in Troxel , and the lessons to be learned from the Court's failure to embrace therapeutic concerns in its resolution of this case.     

Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion

In Mara'abe v. Prime Minister of Israel (September 2005), Israel'sHigh Court addressed the effect which it should give to theInternational Court's Legal consequences of the constructionof a wall in Occupied Palestinian Territory advisory opinion.This had declared the wall illegal but, while affirming thatit shared the International Court of Justice's normative rulings,the High Court reiterated that it thought the wall a lawfulsecurity measure. Rather than dissect the substantive treatmentof the issues involved, this article examines the structureand rhetorical techniques employed by President Barak in hisleading judgment in Mara'abe. He effected a skilful practicaldisregard of the International Court's normative findings throughan elision of argument by relying on the doctrine of res judicata—aconcept that has no relevance whatsoever to advisory opinions.     

NEXT STEPS IN THE EVOLUTION OF ANTITRUST LAW: WHAT TO EXPECT FROM THE ROBERTS COURT

Under the leadership of Chief Justice John G. Roberts, Jr.,the Supreme Court has demonstrated a willingness to cast asidethe Court's prior antitrust decisions. The qualified per serule applicable to tying surely will not survive much longer,but what else might be in store is more speculative. This essayidentifies four decisions relating to competitor collaborationin which the Court's prior application of the per se rule doesnot comport with its modern decisions. In two of the cases,the conduct likely would be found lawful today; while in theother two, the conduct most likely still would be condemnedbut only after an abbreviated application of the rule of reason.This essay also identifies three legal doctrines ready for retirement.They are the absolute requirement of market delineation as apredicate for merger analysis, the outmoded approach to marketdelineation of Brown Shoe, and the unhelpful formulation ofthe monopolization offense in Grinnell.     

THE RIDDLE OF TROXEL

This article addresses the United States Supreme Court case of Troxel v. Granville, which is unique for its attention to the changing face of the American family and the Court's willingness to venture into the troubled waters of family law. Troxel conflates standing with standards and muddies the lines between private and public, between therapeutic intervention and state coercion. The article attempts to unravel the challenge of Troxel, considering both the cases' significance and inflammatory potential, while also raising significant questions that will confound professionals for years to come.     

国际法院咨询管辖权初探

从常设国际法院到国际法院,其咨询管辖权和“司法性”之间的协调一直是一个难题。要想满意地解决法院当前面临的困境,不必急于扩大有权寻求咨询意见的机构的范围,而必须确保各机构在利用国际法院的咨询管辖权时,更多的是出于解决法律问题的目的而非政治目的。     

A trojan horse goes to court: Bolger v. Youngs Drug Products Corp

In Bolger v. Youngs Drug Products Corp., the Supreme Court held that a statute prohibiting the mailing of unsolicited advertisements for contraceptives was unconstitutional as applied to Young's advertisements for condoms. The decision rested on a balancing of the first amendment's grant of free speech with the Government's interest in safeguarding an individual's privacy. The Court noted that the advertisements promoted the flow of information on contraception, and pertained to constitutionally protected private activity. This Case Comment argues that the Court's decision is sound and criticizes the view of the concurring opinion that shielding individuals from potentially offensive speech is a substantial governmental interest. The Comment concludes that the Court's decision expands upon precedent which established an individual's right of privacy regarding the use of contraceptives.     

Shifting Conceptions of Sexual Discrimination at the Court of Justice: from P v S to Grant v SWT

Decisions of the Court of Justice have challenged traditional notions of sexual discrimination. In P v S and Cornwall County Council, the Court held that discrimination against transsexuals was contrary to the 1976 Equal Treatment Directive. However, in Grant v South‐West Trains, the Court rejected arguments that Article 119 on equal pay prohibited discrimination on the basis of sexual orientation. This article contrasts the two decisions, and in particular focuses on the inconsistencies in the Court's definition of what constitutes sexual discrimination. The article further considers the underlying factors which may have influenced the Court's judgment, including the moral dimension and the political context of the two decisions. Finally, there is a discussion of the merits of equality litigation strategies, in particular at the Court of Justice.     

Reparations To Victims Before The International Criminal Court: Lessons From International Mass Claims Processes

The implementation of the rights of victims under the Rome Statute of the International Criminal Court presents momentous challenges to the Court. Given the nature of the crimes falling under the Court's jurisdiction, victims' reparation claims are often likely to number thousands, if not tens of thousands. Under the Statute, it is the Court's task to organize and determine the modalities of victims' participation in the reparation proceedings. The Court is well advised to closely examine the approaches and solutions developed by modern international and national mass claims programs that have faced similar challenges. The paper analyses in detail these challenges and outlines the options available to the Court. The authors are attorneys with Lalive, an international law firm based in Geneva, Switzerland. For further information see http://www.lalive.ch.     

南非宪法法院的"合理性审查标准"介评

"合理性审查标准"是南非宪法法院对政府积极义务进行审查的主要标准,是在宪法法院的判例中形成并逐渐发展起来的。"合理性审查标准"的采用,使宪法法院可以在不侵入立法和行政功能、不与政治部门发生直接冲突的情况下,实现对社会权一定程度的保护。但是,宪法法院对"合理性"的过分关注也制约了法院对政府积极义务审查的范围和程度,对社会权的保护产生了一些不利影响。     

FAMILY COURT ASSESSMENT:Dissolution of Marriage in Florida—Preliminary Assessment Findings

To obtain the empirical data necessary for the development of an effective family court case management model, staff from Florida's Office of the State Courts Administrator undertook a comprehensive assessment of (a) the movement of dissolution of marriage cases through the court system, (b) the factors affecting case flow and time frames, and (c) the system's responsiveness to the families and children it serves. Findings from this study are guiding the Florida Supreme Court's Family Court Steering Committee in its efforts to design an effective case management system that includes intake and referral, differentiated case management and tracking, case monitoring, and alternative dispute resolution.     

The Demarcation of Straddling Villages in Accordance with the International Court of Justice Jurisprudence: The Cameroon-Nigeria Experience

Bi a ba ran eniyan ni ise eru ologbon afi ti omo je (Where instructionsare insensitive and befitting of a slave, a reasonable fellowamends it sensitively and delivers it in a manner befittingthe free).¹

The existence of straddling settlements between Cameroon andNigeria is one of the features of their geographical locationas neighbouring West African States. Although the existenceof these settlements did not constitute a central part of theboundary dispute between both States, implementation of therecent World Court judgment presents crucial dilemmas as tothe treatment of straddling communities in particular and, tosome extent, boundary villages as well. This article exploresthe alternatives that may be adopted in attaining a fair andjust implementation of the Court's judgment in relation to straddlingvillages and boundary communities. The delimitation and demarcationof straddling villages and villages that fall into another State'sterritory are bound to be an increasingly common feature ofthe work of international courts and demarcation commissionsas populations increase and the need to definitively specifyborders increases. It is, therefore, necessary that a specializedjurisprudence is developed for this area of law. This article,therefore, attempts to highlight difficulties in the jurisprudenceof the International Court of Justice in its work in this areaand suggests a typology of factors that may be adopted in varyingdelimitation lines by adjudicators and demarcators. It alsoattempts a digest of what may represent good practice in thelaw of boundary delimitation and demarcation by examining similarcases around the world. The argument presented is that thereis enough within the corpus of international law and internationalrelations for courts to avoid splitting communities needlesslyor subjecting populations to the whims and caprice of hostileStates' territorial jurisdiction, particularly in relation toa continent such as Africa, which has suffered a long and unfairhistory of balkanization of its peoples and civilizations. Thearticle makes the case that the World Court needs more law elaborationif not judicial activism in its delimitation work to avoid inadvertentcomplicity in the abuse of peoples' rights and to attain a morerobust resolution of boundary disputes. The view advanced isthat where aspects of the Court's delimitation may be unsatisfactoryand contrary to the mutual interests of disputants, those chargedwith the task of implementing the Court's judgment must notbe slavish in their appreciation of the spirit of judicial resolution.Where there is the danger that human and generational rightswould be needlessly compromised, nothing apart from an unimaginativeand unco-operative approach prevents demarcators from independentlyadopting a more holistic resolution of the dispute in the interestof human justice, such as by (within very strict limits) varyingdelimitation lines suggested by the Court in particular sectors.     

我国非诉讼行政执行制度的几个问题

非诉讼行政执行作为我国行政强制执行制度的主导形式 ,主要以阻止违法具体行政行为进入强制执行过程为其制度内涵和精神。我国非诉讼行政执行制度是在改革开放以后逐步形成的 ,其形成和存在有认识上的原因 ,也有现实需要的原因。我国非诉讼行政执行制度存在缺乏统一指导原则、司法权与行政权混同等弊端。建议将法院承担的审查和执行职能分开 ,审查职能继续由法院承担 ,执行职能回归行政机关 ;建立和完善法院的审查程序和行政机关执行法院裁定的程序。