On the beginnings of foundational legal research into legal discourse

Conclusion The beginnings of foundational legal research require reflective access to the cultural dynamics which drive the social construction of legal reality. Such access is blocked by our naive immersion within commonsensical and policy-orientated attunements towards our experience of law.Since this very blockage is veiled by its own operation, a suspension of these standpoints is required. This allows us to begin to comprehend the way common sense institutes an ungrounded and superficial obviousness through a self-concealing and naively realistic interpretative schema. From here the positive character of foundational legal studies can itself emerge as the systematic interrogation of legal experience in relation to its what, how and forwhom structure. Foundational theorising is then redirected towards a more respectful and less exploitative relationship with the linguistic roots of our consciousness of law.I would like to thank Peter Goodrich for the useful comments made on the first draft of this article.     

以理论创新提升法学研究的话语权

《中共中央关于党的百年奋斗重大成就和历史经验的决议》(以下简称《决议》)对党领导人民进行法治建设的历程进行了重要总结。《决议》指出,改革开放以后,党坚持依法治国,不断推进社会主义法治建设;强调全面依法治国作为“开创中国特色社会主义新时代”的一项重要历史性成就,是新时代的中国共产党在新征程上展现新气象、新作为的一个重要方面。     

Being Ms B: B, autonomy and the nature of legal regulation

In this article, we question the apparent simplicity of medical law's construction of 'life and death' cases as a clash between the sanctity of life principle and patient autonomy. Our main purpose in doing so is to try to understand more fully the nature of law's regulation of the existence and non-existence of life. Specifically, we argue that, by broadening the understanding of autonomy in this area beyond a simple concern for patients' rights and self-determination, to include a focus on the individual generally, it becomes possible to identify some of the legal practices that are central to the manner in which law regulates the threshold between life and death. Through an analysis of a recent case in English law--Re B (an adult: refusal of medical treatment)--(although Australian jurisdictions presently disclose no similar, authoritative case, ours presently is almost an arbitrary choice)--we demonstrate the central role played in this regulation by tests for mental capacity, questions of character, explanation, and imagination. We conclude that medical law, at least in this context, can be theorised as a normalising practice--one in which the determination of norms often occurs through patients.     

The medical and legal risks of the electronic fetal monitor

Electronic fetal heart monitoring (EFM) is the most widely used method of monitoring the fetal heartbeat for possible signs of distress during delivery. Soon after its development in the 1960s, EFM replaced intermittent auscultation as the standard of care in the obstetrical community. However, Margaret Lent argues that the widespread use of EFM is both medically and legally unsound. Lent points to a series of clinical trials that demonstrate that EFM does not reduce fetal mortality, morbidity, or cerebral palsy rates. These studies suggest that EFM has a very high false positive rate, and that EFM usage correlates strongly with a rise in cesarean section rates. Similarly, EFM provides no protection in the courtroom. Though obstetricians believe that they should use EFM because its status as the standard of care will protect them from liability, Lent argues that it may in fact expose them to liability given its failings. Instead, she argues that auscultation is equally, if not more, safe and effective, and is more likely to protect physicians from liability. Lent concludes that obstetricians have an obligation to their patients and to themselves to adopt auscultation as the new standard of care.     

电子商务中网络安全的法律监管：从自治到规范——基于C2C模式的分析

电子商务中网络安全需要物理性的技术监管,更需要法律的监管.目前我国电子商务的法律环境已经不能满足电子商务网络安全的迫切需求.借助网络平台的电子商务的自由化、全球化、虚拟化和高效化使得电子商务网络安全的法律监管从自治到规范成为可能.法律发展理论和行业自治规则的实践,尤其是电子商务领域已经存在的由自治到规范的实践为电子商务中网络安全法律监菅从自治到规范提供了样本.     

The lore of sexual difference in social and legal discourse on ‘date rape’

Using a framework informed by Foucauldian discourse theory and feminist accounts of sexual difference, this paper investigates the process of attrition in cases initially recorded as rape and in which complainant and suspect are known to each other. Having particular regard to police and prosecutor decision-making in the processing of such cases, the authors consider discourses that utilise conceptions of sexual difference, which work to normalise and privilege cultural assumptions about male desires and conduct in sexual relations. In illuminating the manner in which the traditional binary categories of sexual difference is put to work, the authors argue that socio-legal debates over the phenomenon commonly described as ‘date rape’ have over-simplistically inverted these categories. The authors further argue that this inversion operates to women's detriment and fails to advance a sufficiently nuanced understanding of complex issues implicated in rapes committed against women by men they know. This revised version was published online in November 2006 with corrections to the Cover Date.     

Reproductive choices and informed consent: fetal interests, women's identity, and relational autonomy

In this Article, I describe and examine the severe shortcomings in women's autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women's values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy. In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women's personal identity interests on the other.     

Ideology and discourse

Ethnographic methods were used to study alternative dispute resolution as practiced by two mediation projects. Observations of actual mediation sessions, interviews with key informants, and archival data were used. The authors found that the projects could be distinguished according to (a) uses of coercion and consensus in effecting a resolution, (b) the type of posturing that took place between mediator and disputants, and (c) the type of discourse employed. The authors argue that differences between the two projects emanated from whether the project was planned and executed by a state agency or whether it was community-based.     

临床法学教育与新世纪法学人才的培养--平等式对话教学方式的魅力

高等法律教育是我国教育事业的一个重要组成部分,担负着为市场经济建设与民主法制建设培养高层次专业人才的重要任务.在更新教育观念,转变培养模式,强化能力培养的教育改革的形势下,作为大学法学院应该教给学生什么?我们不可能在有限的四年时间内教给学生今后一辈子所需的各种法律知识.况且法律变化频繁,知识更新快捷.学校教师传授知识固然重要,但更重要的是教给学生分析、辨别、创造知识的能力.     

Posthumous reproduction and the meanings of autonomy

In recent years there has been considerable debate over the legal and ethical issues associated with posthumous reproduction. This article analyses recent cases and legal regulation of reproductive technologies in Australia. The issues associated with posthumous reproduction are explored through a consideration of the nature of an individual's interest in their reproductive material. The suitability of a property-based model as a means of conceptualising interests in reproductive material is explored. The article concludes that the issues in this area need to be analysed in terms of autonomy interests that are understood relationally.