Book Reviews

In this article the author explores the gender‐bias question with respect to the female death penalty debate in the English‐Speaking Caribbean nation of Trinidad and Tobago by presenting a case study of Indravani Pamela Ramjattan. The British Privy Council recently remanded her case to the Trinidad Court of Appeal. A decision in her favor could set a regional precedent which would, for the time, allow women in the English‐Speaking Caribbean to present evidence akin to Battered Spouse Syndrome. Of the almost twenty nations of the English‐Speaking Caribbean, Trinidad and Tobago is the only nation to have any women on death row. Ms. Ramjattan was convicted for the murder of her husband. Her case gained international attention and support from women's groups who speak out on behalf of battered women. Although there is popular support, in general, throughout the Caribbean for the imposition of the death penalty, public sentiment in Trinidad and Tobago regarding the hanging of a female may prove to be very unpopular for the present government of Basedo Panday.     

Re-Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors

In Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.     

Testing Times Ahead: Non‐Invasive Prenatal Testing and the Kind of Community We Want to Be

This article reviews the Nuffield Council on Bioethics’ report on Non‐Invasive Prenatal Testing (NIPT); and introduces two general questions provoked by the report – concerning, respectively, the nature and extent of the informational interests that are to be recognised in today's ‘information societies’ and the membership of today's ‘genetic societies’. The article also considers the role and nature of the Nuffield Council. While the Council's report identifies a range of individual and collective interests that are relevant to determining the legitimate uses of NIPT, we argue that it should put these interests into an order of importance; we sketch how this might be done; and we suggest that, failing such a prioritisation of interests, the Council should present its reflections in a way that engages public debate around a number of options rather than making firm recommendations.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

Bodily Integrity,Embodiment, and the Regulation of Parental Choice

In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.     

民事调解书的检察监督

对民事调解书进行检察监督是2012年民事诉讼法的新规定,也是我国检察机关的新任务。对调解书的监督与对判决、裁定的监督存在多方面的差异,只有充分认知和把握两者的区别,对民事调解书的检察监督才能顺利进行。民事诉讼法第208条中的"调解书",解释上应包括调解笔录、司法确认裁定书,但不包括仲裁调解书。对调解书的监督,应当采用依职权监督的方式。授权检察机关对损害国家利益、社会公共利益的调解书进行监督的规定属于法律中的一般性条款,检察机关正确实施监督的关键在于恰当界定调解书是否损害这两种利益。对国家利益、社会公共利益应当采用目的性扩张的解释方法,调解书违反法律的禁止性规定、严重违背社会公德、损害集体经济组织利益、损害社会弱势群体利益的,也应当视为损害国家利益、社会公共利益。损害案外人利益的虚假诉讼的调解书,也应成为监督的对象。适用民事诉讼法第208条时,还应注意国家利益与社会公共利益在一些情况下难以精确地界定和区分。     

The Future of Work and U.S. Public Opinion on Noncompete Law: Evidence from a Conjoint Experiment

Although policymakers have recently shown a keen interest in noncompete reform, a gap exists in the literature concerning what the U.S. public's preferences are regarding noncompetes. Therefore, this article presents the empirical findings of a nationally-representative survey of the American public on the noncompete law governing employees. Based on the results of a conjoint experiment within the survey, this article finds that the U.S public prefers that noncompetes be used to protect any types of confidential information, rather than simply customer lists or employee training investments. Additionally, the findings do not show clear support either for or against noncompete exemptions based on an employee's earnings level. However, this article finds that the U.S. public prefers a noncompete exemption for physicians, a shorter maximum duration for the noncompete period, and a legal mandate that departing employees subject to noncompetes receive some compensation from the employer during the noncompete period. Consequently, this article argues that employers should engage in greater self-regulation if they would like to mitigate the risk not only that legislators will respond to public sentiment favoring more employee-friendly policies by enacting a total or near-total ban on noncompetes, but also that judges will find the noncompetes to be unreasonable.     

The non-discrimination principle and American higher education: judicial failure to recognize the present effects of past discrimination

This article suggests that any approach to the issue of access to higher education in the United Kingdom not view the approach of the United States in the recent University of Michigan cases as providing appropriate guidance. It is the author's assertion that the United States Supreme Court has failed to recognize the present effects of a long history of deliberate racial segregation of higher education in America and the affirmative duty of public higher education to remedy the effects of America's unique system of racial segregation. Specifically, the Supreme Court's jurisprudence has abandoned the interests of the victims of a judicially sanctioned exclusion of African-Americans from public higher education during most of the 20th Century, and has instead supported equal access only to the extent that it furthers the university's own interests in so-called ‘diversity’. This disregard for the history of American racial segregation is inconsistent with the Constitutional principles announced in Brown v. Board of Education and the federal judicial decisions which secured and advanced the mandate for racial equality announced in Brown v. Board.     

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.     

National Security and the Press: The Government's Ability to Prosecute Journalists for the Possession or Publication of National Security Information

In 2006, then Attorney General Alberto R. Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. In addition, the federal government's prosecution of two former lobbyists for the American Israel Public Affairs Committee (AIPAC) for possessing and disseminating national security information has been called an attempt by the government to prosecute individuals who behave like journalists. This article identifies existing laws under which the press could be criminally prosecuted for the possession and/or publication of national security information and describes how the courts have addressed those laws. The article concludes that while there is support for Constitutional protection for journalists in these cases, the Supreme Court of the United States is unlikely to interpret the First Amendment as protecting journalists from prosecution for possessing and/or publishing national security information. Therefore, the article contends that Congress should amend the statutes outlined herein to limit prosecution to instances when there is evidence of intent to harm the United States.     

Lawyer Specialization–Managing the Professional Paradox

This article explores a series of paradoxes exposed by specialization within the legal profession. It will argue that while the existing literature rightly identifies specialization as posing potential challenges to coherence, legitimacy, and professional ethics, it fails to grapple with the relationship between professional competence and specialization. In exploring this relationship, three paradoxes are articulated. The first is that specialization is both a necessary element in the development of professionalism and a threat to it. The second is the normative ambiguity of specialization: specialization is capable of giving rise to both benefits and detriments. The third paradox is the profession's response to this ambiguity. It will be argued that the profession's approach is incoherent in public interest terms and can be best explained as part of a desire to protect its members' interests and its collective identity over the public interest in competence. These arguments are made in the context of a series of three empirical studies of specialists and nonspecialists in legal aid practice in England and Wales. The evidence is worrying enough to suggest significant concerns about the quality and indeed legitimacy of the professional qualification as a general warrant of competence. The implications for institutionalizing specialization within the legal profession are discussed.     

论我国环境公益诉讼制度的构建——兼评《环境影响评价公众参与暂行办法》

环境公益诉讼可以分为环境民事公益诉讼、环境行政公益诉讼、环境公诉。环境公益诉讼制度的构建应以《宪法》、《环境保护法》的规定为依据,通过确定诉讼原告、环境公益,对《民事诉讼法》、《行政诉讼法》等作适当修订,并结合一些相关诉讼制度,在实践中逐步进行。《环境影响评价公众参与暂行办法》因缺乏环境公益诉讼制度的规定,将直接影响其立法目的的实现和公众参与的主动性。     

Litigation Public Relations: The Lawyers' Duty to Balance News Coverage of Their Clients

As the 20th century began its final decade, litigation public relations was more rigorously condemned than condoned. By the end of the decade, the proliferation of the practice and the failure of the bar and bench to forbid it had made the criticism virtually moot. This article considers whether there is a basis for making the right to practice litigation public relations an obligation to do so. The article concludes that the right properly belongs to clients and not their attorneys, and finds a basis in contract and malpractice law for requiring attorneys to tend to their clients' interests in the court of public opinion as zealously as they do in courts of law.     

Braving Jim Crow to Save Willie McGee: Bella Abzug,the Legal Left,and Civil Rights Innovation, 1948–1951

This article considers the role of Bella Abzug, lead counsel for Willie McGee from 1948–1951, in shaping the defense of this Cold War era Mississippi rape case. Representing McGee left an indelible mark on Abzug: she made her first trip south, wrote her first Supreme Court petition, and faced her first death threat. Participation in the Left legal bar—especially the National Lawyers Guild and Left feminist circles—shaped Abzug's legal consciousness as she redirected the McGee defense significantly in 1950. By joining race and sex, Abzug's legal argument zeroed in on the taboo of interracial sexual relations at the heart of Southern rape cases, thereby exposing the innermost sexual color line. She urged the courts and cause lawyers—albeit unsuccessfully—to pursue a more radical civil rights agenda than outlawing public segregation, as ultimately achieved in Brown v. Board of Education (1954), and typically recognized in Cold War civil rights scholarship.     

Let us Focus Our Efforts on the Main Problems

A particular feature of the present phase of the battle to strengthen socialist legality consists in the fact that questions of improving discipline, legality, and the maintenance of law and order rank among the most vital problems in importance. This is a manifestation of the Soviet people's growing impatience with everything that keeps them from living and working normally and from taking full advantage of developed socialism. At the November 1982 Plenum of the Central Committee of the CPSU, which elaborated the party's strategy for the next few years, among the most urgent tasks noted were those of increasing responsibility for adhering to general state and public interests, decisively rooting out narrow bureaucratic and local interests, and waging a fight against any infractions of party, state, or labor discipline. Iu. V. Andropov, General Secretary of the CPSU Central Committee, emphasized especially that the question of a zealous attitude toward the public interest is primary to realizing our plans. And its resolution must be ensured through a system of practical measures.     

Seven Days in the Life of Korolev

The end of Party authority over the press created illusions: freedom of the press for the public at large and independence for journalists themselves. On a wave of glasnost', newspapers that were created anew or had ceased to be someone's organs, one after another, declared themselves independent. Few professional journalists will be found who during these years resisted the possibility of publishing their own independent newspaper. Nor could we, a few Riga journalists, resist the temptation either. Contradictions arose among people in the Baltic republics, and the conflict between the local and central press intensified. Given this background, the lack of a general Baltic regional newspaper seemed a dereliction. And so the Nevzavisimaia Baltiiskaia Gazeta [Independent Baltic Newspaper] was born. A sponsor was also found, the Association of Independent Entrepreneurs, "Baltiia," which was willing to give the newspaper material support. The association united several cooperative firms and banks, counted a turnover in the millions, and had hard currency accounts.     

Enforcing the Child's Right to Know Her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights

The justification of the child's right to know her origins andthe fundamental interests underlying it have attracted a lotof attention in recent years. This article goes one step furtherand assesses that right's enforcement in practice together withits guiding principles. It starts by restating what the rightconsists in and what interests it protects according to differentinternational human rights instruments. It then reveals theconflicts of rights that lie at the heart of the implementationof the right to know and explain its complexity. After consideringthe competing interests present, the article argues that noneof these interests and rights should be regarded as absoluteand suggests ways in which they can be balanced against eachother. The recent evolution in the European Court of Human Rights(ECtHR) case law with its more nuanced balancing of the competingrights is contrasted with the Convention on the Rights of theChild (CRC)'s focus on the child's paramount interest. The articleargues that these different approaches are reflected in nationallegal orders in Europe. By tracing the origins of this divergenceback to those conflicting international legal paradigms andby proposing abstract adjudication principles to guide the concretebalancing of competing rights, the article hopes to contributeto a better understanding and ultimate reconciliation of thechild's multiple identities – social and biological.     

The standard of living of widows: Inventories as an indicator of the economic situation of widows

This article examines the standard of living of widows in two rural areas, South West Finland and Central Sweden, in the eighteenth and nineteenth century and among first generation migrants to Stockholm between 1680 and 1750. The principal sources used are the inventories of a person's possessions that were taken after their death, supplemented in the case of the rural populations by retirement contracts (which were not used by urban populations in the Nordic countries). Wealth is measured in three ways: examination of the type and value of the property listed in the inventory, calculating what goods might be purchased with a given inheritance, and a comparison of the inventories of widows with those of married women and with men. A range of factors, it was discovered, determined how much property a widow might own at her death. These factors included her age and whether there were children entitled to a share of the family's property but also the impact of inheritance law which awarded widows a larger share of marital property in towns than in the countryside and included the house which in rural areas was considered to belong to the family and not to any one individual. Analysis of this evidence suggests that the widows of farmers were likely to be economically secure due to the provisions in their retirement contracts which provided them with housing, food and care until their death. The situation of the widows of the landless was considerably more precarious. Some might even have nothing to inherit from their husbands.     

Autopsy Identification of Viable Mycobacterium Tuberculosis in the Lungs of a Markedly Decomposed Body

Various infectious diseases, including COVID-19, MERS, and tuberculosis, are global public health issues. Tuberculosis, which is caused by Mycobacterium tuberculosis (MTB), is highly contagious and can be transmitted through inhalation of the bacteria. However, it has been assumed that the infectiousness of bacteria and viruses in dead bodies weakens as the time from death increases. In particular, there is little awareness of infection control measures concerning decomposed bodies or even the need for such measures. The deceased, in whom we discovered MTB 3 months following her death, was a woman in her 80s who died at home. We performed judicial autopsy, because police suspected homicide when her husband hanged himself. Obtained organs were used for microscopic examination by hematoxylin–eosin staining and Ziehl–Neelsen staining. In addition, real-time PCR and mycobacterial culture testing using Ogawa's medium were performed for the detection of MTB. We found that the MTB in the decomposed body remained viable and potentially infectious. To identify the bacterial strain further, we performed DNA-DNA hybridization and identified the strain as MTB complex. Potentially infectious live MTB survived in the dead body far longer than had been previously reported. Pathologists should consider microbial culture tests for all autopsied cases in which the decedent's medical history or macro-examination suggests possible infection, even when a long duration of time has passed since death. Pathologists and specialists who perform autopsies should recognize that all dead bodies are potentially infectious, including those in which long periods have elapsed since death.