‘It’s an invisible wound’: the disenfranchised grief of post-separation mothers who lose care time

This paper enriches understandings of the implications of contemporary custody law for mothers and their children. It does so through a discussion of mothers’ grief and emotional pain over involuntarily losing care time with children. Mothers involuntarily lose care time by becoming non-resident parents against their will or by having a shared care parenting order imposed on them. Both experiences of losing maternal care time are becoming more commonplace as a result of the gender neutrality of custody laws across the Anglo-West and the increased emphasis given to shared care parenting as a viable post-separation parenting arrangement. Yet investigations into the emotions engendered by mothers’ loss of care time are sparse. Exploratory qualitative research with twelve mothers who involuntarily lost care time reveals the intensity and durability of their grief, its entanglement with emotions like fear, and its significance, as a relational welfare approach emphasises, to children’s best interests.     

The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.     

Economic analysis of the removal of illegal gains

The purpose of the present paper is to explore both the motivation for confiscating illegal gain and also to look at some of its legal aspects and economic effects. It is argued that the removal of illegal gain may be able to play a significant complementary role, if only by closing the gap between the maximum punishment the law will allow and fines sufficient to represent a credible deterrent. The paper develops a deterrence model and applies it to confiscation powers introduced to help combat drug trafficking.     

The Cultural Defense

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so-called "cultural defense" ought to be allowed as a freestanding defense to a criminal charge. Such a defense would "negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor's cultural heritage or tradition." The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.     

Natural Law,Basic Goods,and Fiduciary Altruism

Even though fiduciary duties take the highest position in the spectrum of legal altruism, and legal fiduciary altruism sometimes differs from moral fiduciary altruism, natural law morality is not necessarily useless in helping to explain, determine, and justify concrete rules in fiduciary law. Five specific inspirations, in addition to divergences, can be drawn by a closer look at the seven basic goods of John Finnis’ natural law theory. First, the basic good of life may help to determine the boundary of the best interest test under the duty of loyalty. Second, the basic good of play, in particular the distinction between business community and play community may help to justify the separate treatment between civil agency and commercial agency regarding the unconditional power of immediate termination. Third, practical reasonableness may help to explain the rule against set-off under the duty of no conflict. Fourth, different cultural notions of sociability may lead to distinct understandings with regard to the no-profit rule. Fifth, different attitudes towards knowledge in various religious beliefs may create distinct understandings about the burden of informed consent.     

Antitrust, health care quality, and the courts

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.     

A history of the use of the concept of parental alienation in the Australian family law system: contradictions,collisions and their consequences

ABSTRACT

This paper presents insights into the history and current deployment of the concept of parental alienation in the Australian family law system. It begins in 1989, when an article on parental alienation syndrome was first published in an Australian law journal. It then traces aspects of the socio-legal and social science research, gender politics, law reform and jurisprudence of the following 30 years, paying attention to moments of significant change. The impacts of major amendments that emphasise the desirability of post-separation shared parenting outcomes in 1996 and 2006 are specifically considered. More recently, in 2012, reforms intended to improve the family law system’s response to domestic and family violence were introduced. The history reveals an irreconcilable tension between the ‘benefit’ of ‘meaningful’ post-separation parent-child relationships and the protection of children from harm. When mothers’ allegations of violence in the family are disbelieved, minimised or dismissed, they are transformed from victims of abuse into perpetrators of abuse – alienators of children from their fathers. Their actions and attitudes collide with the shared parenting philosophy. This is arguably an inescapable consequence of a family law system that struggles to deal effectively with family violence in the context of a strong shared parenting regime.     

PARENTING PLANS

The purpose of this article is to explore the concept of parenting plans as a positive next step in the evolution of child custody law. After establishing the need for a postdivorce parenting scheme more responsive to the real needs of divorcing families, this article will then detail both the conceptual framework of parenting plans and the mechanics of how they actually work in one jurisdiction.     

The Ends of Innocence: Age as a Mode of Inquiry in Sociolegal Studies

This article considers two recent books in the history of childhood, youth, and the law: Holly Brewer, By Birth or Consent and Stephen Robertson, Crimes Against Children . It argues that these works mark the emergence of age as a category of analysis in sociolegal studies. It calls for further investigations in the legal history of childhood and youth, outlines several areas of interest, and suggests that attention to age will alter how scholars look at the law by complicating key concepts such as innocence, authority, and citizenship. Studies of age and the law could benefit from cross-cultural and transnational approaches.     

Reconfiguring the Animal/Human Boundary: The Impact of Xeno Technologies

The focus of this paper is on the symbolic and cultural as well as practical implications of what I term xeno technologies. I argue that these biomedical technologies, which aim to prolong individual human lives through the sacrifice of animal bodies, generate considerable anxiety and pose many intriguing issues for health care lawyers. In part, the concerns engendered by xeno technologies are attributable to the incalculable risks they may pose. This, coupled with public distrust of scientific evaluations of risk, undermines scientific attempts to present them as benign technologies. In this paper, however, I suggest that xeno technologies provoke a deeper cultural unease by raising, in acute new forms, historical and religious concerns about bodily mixing and rejection which challenge traditional notions of (human) self identity. The various ways in which xeno technologies render human and non-human bodies vulnerable and penetrable, pose multiple challenges to the animal/human boundary. In my view, they should force a radical re-thinking of notions of kinship, which should extend beyond the ȁ8easy caseȁ9 of human kinship with other great apes. Rather than addressing this issue, however, healthcare law makes valiant attempts to shore up the animal/human boundary. Such efforts at boundary maintenance may be traced at various sites, including the regulatory regime under the Human Fertilisation and Embryology Act 1990. I argue that lawȁ9s efforts to grapple with the ethical challenges posed by biotechnologies are doomed to incoherence unless it confronts the unreflective speciesism underpinning law, which designates animals as property and serves to obscure our kinship with them. My suggestion is that health care ethicists and lawyers should instead seek to expose the myriad ways in which biotechnologies may prove oppressive rather than liberatory for those who are made their human and animal subjects.     

Cyberpornography,Cyberidentities and Law

In this research, I take the established trilogy of pornography, identity and law and explore the question of what happens when 'cyber' is added to the equation. Informed by cyberpunk writings, cybertheorists and academic sources, and using such theoretical frameworks as queer theory, post-feminism and cyberfeminism, I look at how the (inter)relationship between pornography, identity and law can be understood and analysed in a cyber age: what new cyberpornographies and cyberidentities will evolve before the law, and what forms might law take in relation to them?     

Evaluating the work of Australia's Family Relationship Centres: Evidence from the first 5 years

Family Relationship Centres (FRCs) have been described as a centerpiece of Australia's 2006 family law reforms. This paper places these centres in the larger context of the reforms and their commitment to providing community‐based family services in the family law area. The paper also examines the empirical evidence regarding FRCs' use and effectiveness. It notes that while the objectives and intentions of FRCs place considerable emphasis on strengthening family relationships and assisting families to stay together, the centres themselves have only a modest level of direct involvement with intact families. FRCs tend to have strong links with other community‐based family services, many of whom are more engaged with intact families; but it is difficult to gauge their effectiveness in this area. Most FRCs' direct services are aimed at separating families and most of that work involves family dispute resolution (family mediation) and associated services such as screening and assessment and the provision of relevant information. A substantial majority of clients who attend FDR at an FRC reach agreement about their parenting arrangements either at FDR or subsequent to attending FDR. These agreements also tend to hold up in the medium term. A majority of parents believe that at FDR, the child(ren)'s needs were taken into account; the parenting agreement worked for the child(ren); and the parenting agreement worked for them. A substantial proportion of FRC clients come from families that have experienced family violence or other dysfunctional behaviours, and such behaviours reduce the chances of resolving parenting disputes. The paper concludes by suggesting that having been created mainly as a default alternative to legal interventions and court processes, it is likely that a major future strength of FRCs will lie in their emerging capacity to work constructively not only with other relationship services and networks, but with family lawyers and the courts.     

Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality

Through the lens of the French law prohibiting Muslim headscarves in schools, this article examines the way in which societal tensions that arise in the context of religious and cultural pluralism are translated into legal discourses relating to human rights and equality. It explores the way in which the law is rooted in France's broader sociopolitical structure and history and contrasts it to the United Kingdom and Turkey. It proposes that the law is based on an anachronistic, formal interpretation of equality that is inappropriate for addressing the inevitable cultural diversity of modern French society, and through its permeation into law and policymaking more widely, it is a primary cause of the heightened social tensions involving the Muslim minority. An assessment of the legitimacy of a law that restricts minority groups' cultural practices in this way in any society should be based on a substantive interpretation of equality and should necessarily involve an active endeavor to understand the meanings of those cultural practices for those groups within their distinct context. Upon this foundation, law and policy can be developed in a way that better reconciles the pluralism of modern society with the common objectives of social harmony, stability, and tolerance.     

Icons of control: Deleuze,signs, law

This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S. Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that control functions through the confusing of sense and meaning. Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray.     

Catching Cybercriminals: Policing the Internet

This article seeks to contribute to the existing debate(s) over the governance of cyberspace by focusing not upon legal frameworks, which have been already been the subject of much good work, but upon the enforcement of law. What is missing from much of the recent debate has been a substantive discussion of some of the practical problems of policing the Internet, such as by whom and how it should be (is being) policed. Such considerations are becoming increasingly important as the inhabitants of cyberspace multiply in number. It is argued that much of the debate over the policing of the Internet has tended to be driven by moral panics. As these panics subside it is becoming clear that there is clearly a confusion in the literature between the potential and actual harms that can be inflicted by cybercrimes. Consequently, we must be wary of reports which exaggerate the extent to which cybercrimes have proliferated, especially when those reports appear to originate from bodies who are currently engaged in the growing cybercrime industry. Furthermore, the legal problems appear to be less considerable as previously thought, especially with regard to the conflict of laws. This is not to say that there is not a problem, for there clearly is, but the article suggests that some of the undesirable behaviours will work themselves out, some will be eradicated by technology, whilst the remainder will continue to challenge our traditional understandings of crimes and deviant behaviours and the way that we police them. The first part of this article will look briefly at the growth of cybercrime: at what it is, who are the offenders and who are their victims. The second part will look at current models of policing the Internet and the third part will explore the appropriateness of the terrestrial policing model to the treatment of cybercrimes.     

The Portuguese Parliament and Public Opinion: A Case for Reform?

During the past decade, the Portuguese political system has been under close scrutiny. As in other Western democracies, the topic of citizens' dissatisfaction with democratic institutions has been at the centre of a wide debate amongst public opinion and politicians. This debate has focused on parliament and parliamentary reform has often been seen as a way of enhancing parliament's image. However, as this note will show, there is no clear evidence that the Portuguese are dissatisfied with this institution. Indeed, this is still an under-researched area. Why is there an assumption that the Portuguese parliament has a negative image? And why should this have consequences for parliamentary reform? In the context of the creation of a Portuguese Election Study, this note aims to raise questions for future research on this topic. The note will look into the concept of legislative support, assess the evidence available on the Portuguese parliament's popularity and suggest indicators that would help to clarify the Portuguese views on this. It will also explore the connection between legislative support and the role of parliament, to enquire whether popularity indicators can make a case for parliamentary reform.     

Weighing both sides: morality, mortality, and framing contests over obesity

Despite recent and growing media attention surrounding obesity in the United States, the so-called obesity epidemic remains a highly contested scientific and social fact. This article examines the contemporary obesity debate through systematic examination of the claims and claimants involved in the controversy. We argue that four primary groups-antiobesity researchers, antiobesity activists, fat acceptance researchers, and fat acceptance activists-are at the forefront of this controversy and that these groups are fundamentally engaged in framing contests over the nature and consequences of excess body weight. While members of the fat acceptance groups embrace a body diversity frame, presenting fatness as a natural and largely inevitable form of diversity, members of the antiobesity camp frame higher weights as risky behavior akin to smoking, implying that body weight is under personal control and that people have a moral and medical responsibility to manage their weight. Both groups sometimes frame obesity as an illness, which limits blame by suggesting that weight is biologically or genetically determined but simultaneously stigmatizes fat bodies as diseased. While the antiobesity camp frames obesity as an epidemic to increase public attention, fat acceptance activists argue that concern over obesity is distracting attention from a host of more important health issues for fat Americans. We examine the strategies claimants use to establish their own credibility or discredit their opponents, and explain how the fat acceptance movement has exploited structural opportunities and cultural resources created by AIDS activism and feminism to wield some influence over U.S. public health approaches. We conclude that notions of morality play a central role in the controversy over obesity, as in many medical disputes, and illustrate how medical arguments about body weight can be used to stymie rights claims and justify morality-based fears.     

Punishment and Welfare:

This paper will attempt to situate the current discourse on 'crack pregnancies' within the context of a broader regulatory discourse.' It will argue that defining and locating state intervention solely within the confines of formal legal discourse not only privileges the criminal law, but (1) occludes recognition of the ways in which regulation and control are effected by administrative law and welfare policy and (2) fails to specify the role of the welfare state in the construction and reproduction of dominant cultural norms of womanhood and mothering. The paper draws on feminist literature and fieldwork-in-progress to suggest that many of these women are already subject to substantial mechanisms of social control and cultural reproduction. In concluding, it is suggested that the construction of this debate to date has served to deflect attention away from the fissures of gender, race and class that render these women's lives as publicly problematic.     

Reshaping professionalism: branding,marketing and the new entrepreneurial barrister

Based on empirical evidence from in-depth interviews with barristers and other chambers’ staff, this paper investigates the development of marketing at the Bar of England and Wales since the removal of the advertising ban by the Bar Council in 1990. Marketing has developed in the context of an increasingly competitive market, structural reforms and legal aid cuts. The engagement of marketing consultants, together with a growing array of marketing initiatives, is transforming the cultural landscape at the Bar and is now integral to structural and organisational changes within chambers. This paper analyses the marketing models and techniques that are being deployed and how these developments are reworking traditional notions of legal professionalism. Barristers have had to acquire new skills, marking a shift from the notion of an independent, self-employed practitioner to the new ‘entrepreneurial barrister’. It further examines conflicting evidence on professional attitudes to marketing and its efficacy, despite heavy investment of time and money.     

敦煌析产遗嘱文书探微——以族、宗族、家族、民族为视角的解构

对弥足珍贵的敦煌析产遗嘱文献超越浮泛的研究,以专题探微的方式代之以文化的释解,并从民族的视角进行深层追问,不但能使我们鉴别析产遗嘱与分家的不同,而且通过其中富含的文化因子再现中古时代广阔的社会生活画卷,佐证中国古代具有私法意义的遗嘱继承,一窥隐于私契文书背后的民族特质、文化结构、混融的民间信仰与基于民族普遍性的共通原理。