"No compensation" or "pro compensation": Moore v. Regents and default rules for human tissue donations

The much studied case of Moore v. Regents of the University of California is often considered important in property law for denying property rights in human tissue. This widespread misunderstanding of Moore has not only misplaced the legal emphasis of human tissue donations on property law instead of contract law, but has also hindered the creation of a much-needed default rule governing the issue of compensation for donated tissue. While it is possible that the majority of donors rarely consider compensation as an incentive to donate, without a legally recognized default rule the law remains blurred as to what contractual provisions apply to the exchange between donor and researcher. This Article argues that the solution is a weak default rule of no compensation that may be overridden by evidence that the parties intended otherwise.     

Why courts cannot deny ADA protection to plaintiffs who do not use available mitigating measures for their impairments

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.     

Towards the development of ethical practices in paediatric clinical trials: the special position of the terminally ill child

This article examines the emotive and vexing issue of the involvement of terminally children in paediatric clinical trials. Particular emphasis is placed on the participation of such children in Phase I clinical studies, as such studies do not yield any benefit to the individual child. It provides an historical overview of medical research involving children and examines the moral arguments surrounding the participation of children in clinical trials. The article examines the conflict between doctor-as-researcher and doctor-as-treater as well as the problems presented by proxy consent providers. The role played by the human research ethics committee in this area is examined, as is the regulatory framework established by the National Health and Medical Research Council. The article argues that the participation of terminally ill children in Phase I clinical trials is not morally repugnant provided that there is a total commitment to the protection of the child participant's well-being during the dying process. It is argued that the moral justification for such position derives from the utilitarian notion that participation in such studies aims to benefit future generations of ill children.     

The relationship between crime and “objective” versus “subjective” strains

Agnew's (2001, 2006) general strain theory makes a distinction between “objective” strains, which refer to events and conditions which are disliked by most people in a given group, and “subjective” strains, which refer to events and conditions which are disliked by the people who have experienced them. Agnew argues that there is only partial overlap between objective and subjective strains, since many people do not subjectively evaluate the objective strains they experience in a negative manner. Further, Agnew argues that subjective strains should be more strongly associated with crime, since they are more likely to generate the negative emotions that lead to crime. This article tests Agnew's arguments with data from a sample of Italian youth. The results provide some support for Agnew, suggesting that many people do not evaluate the objective strains they experience in a negative manner and that subjective strains are more strongly associated with crime than are objective strains. These findings have important implications for the research on general strain theory.     

A test of methodology intended to assist detection of aggressive offence paralleling behaviour within secure settings

Purpose. Treatments and risk assessments determined by the offence paralleling behaviour (OPB) framework appear to have found a place in practice well ahead of empirical support and conceptual clarity. Although the framework is intuitively appealing its inappropriate use may have profound negative implications for patients. Incapacitation and unnecessary treatments may be demanded when observed behaviours are interpreted as evidence of persistent pathology related to previous patterns of criminal offending. Conversely, behaviours occurring within institutions that are not topographically similar but that fall within the same response class and do represent the continuation of problematic patterns of behaviour may be ignored if observers are not sensitive to the possibility that problem behaviours, albeit muted, may persist within institutions. Methods. This paper presents a study examining the similarity of personality disordered patients' violent index acts with their aggressive behaviour during hospitalization. Results. Results revealed evidence of cross situational similarity for some but not all aggressive behaviours. Conclusion. These results provide support for the OPB framework. However, the lack of similarity on a significant number of incidents indicates a need for thorough, structured analysis to determine whether an aggressive behaviour observed in an institution parallels violent acts preceding incarceration.     

Racially conditional donation: the example of umbilical cord blood

While direction of donated tissue to family members has long been accepted, direction to members of specific racial groups has been opposed, on the basis that it is discriminatory and contrary to the ethos the institution of organ donation seeks to promote. It has, however, recently been proposed that racially conditional donation may provide a useful--and ethically acceptable--way to address the social inequalities and injustices experienced by certain cultural groups. This article examines the ethical, legal and cultural arguments for and against racially conditional donation, concluding that the practice is more likely to undermine the values of equity and justice than to promote them and that it may also lead to other unfavourable personal and social outcomes.     

Sexually abusive behaviour in juveniles: Deviant and non-deviant pathways

Abstract

In this paper a theoretical framework is presented in an attempt to find an answer to the question of why some juveniles display sexually abusive behaviour and others do not. Until recently, this question has been approached mainly in terms of the presence of psychiatric illness, deviant sexual interests and/or impaired psychosocial development. Empirical research has as yet generally failed to demonstrate this approach to be adequate. It is estimated that only about 40% of juvenile sex offenders appear to show some kind of psychological or developmental deviance. The theoretical framework that is presented here approaches sexual abuse committed by juveniles in terms of normal developmental processes, next to deviant processes. It describes this behaviour, and its presence or absence, as a result of the interaction of biological, psychological and situational factors.     

Selecting "saviour siblings": reconsidering the regulation in Australia of pre-implantation genetic diagnosis in conjunction with tissue typing

In recent years, pre-implantation genetic diagnosis (PGD) has been developed to enable the selection of a tissue type matched "saviour sibling" for a sick child. This article examines the current regulatory framework governing PGD in Australia. The availability of PGD in Australia to create a saviour sibling depends on the regulation of ART services by each State and Territory. The limitations on the use of PGD vary throughout Australia, according to the level of regulation of ART in each jurisdiction. This article considers the limitations on the use of PGD for tissue typing in Australia and argues that some of these should be removed for a more consistent national approach. In particular, the focus in ART legislation on the "paramount interests" of the child to be born is inappropriate for the application of tissue typing, which necessarily involves the interests of other family members.     

The Myth of 'Rebalancing' Retaliation in WTO Dispute Settlement Practice

It is generally assumed that trade retaliation under the WTOperforms some kind of ‘rebalancing’ by allowingthe injured Member to suspend ‘concessions and obligations’vis-à-vis the violating Member of a level equivalentto the level of ‘nullification and impairment’ sufferedby the injured Member. This article argues that this perceptionis misguided. The article first questions if a sensible comparatorexists with which equivalence for purposes of ‘rebalancing’could be evaluated. It then argues that WTO arbitration decisionsdo not even succeed in their limited goal of providing for retaliationthat will affect trade in the same amount as the WTO-inconsistentmeasure at issue. One reason is the use of an asymmetric andunderspecified trade effects comparator. The other reason isvery significant miscalculation of the trade effects of theviolation, as shown by detailed legal-economic analysis of allrelevant arbitration decisions. The decisions concerning countermeasuresagainst prohibited export subsidies do not make any attemptat ‘rebalancing’ in the first place. The articleconsiders political explanations of arbitration decisions. Itconcludes with some suggestions for improvement.     

Contract Damages, Corrective Justice and Punishment

This article re-examines the established principle that contract damages compensate but do not punish from the theoretical perspective of corrective justice and, in particular, the version advocated by Professor Ernest Weinrib. Weinrib argues that corrective justice affirms the traditional view that contract damages should be circumscribed by compensatory functions, and the notion of punitive damages is inconsistent with the structure of corrective justice and hence contractual rights. The correctness of this conclusion depends, however, on what is understood by punishment. This article argues that punishment is not necessarily explicable only as a form of state punishment, but may (adopting the retributive idea of punishment expounded by Jane Hampton) also be understood as a form of correlatively-structured response that redresses the moral injury inflicted by one's conduct on another. If that is the case, punitive damages for breach of contract may be justified even within the framework of corrective justice.     

Loan Sharks v. Short‐term Lenders: How Do the Law and Regulators Draw the Line?

With the Office of Fair Trading (OFT) having just published its ‘comprehensive review’ of some aspects of the business of short‐term lenders, this article examines the phenomenon of short‐term lenders. It draws on the legal and conceptual changes in the United Kingdom's consumer credit sector that have aided their proliferation. It argues that short‐term lenders in their current form are no different from loan sharks and that the current legal and regulatory framework has failed to provide the required protection for vulnerable credit consumers. It highlights how the United Kingdom's legal approach to consumer protection has been to the detriment of short‐term borrowers.     

Rawlsian difference principles and economic utilitarianism

John Rawls's theory, justice as fairness, constitutes an important alternative to a utilitarian theory of social justice. This essay addresses the relationship between utilitarian choice and the difference principle that is central to Rawls's theory. It argues that the difference principle, if applied to utility, is not supportable in the economic utilitarian framework. The Rawlsian result could be consistent with this framework if expressed with respect to income rather than utility. However, the argument in a utilitarian framework is ad hoc and not compelling. The paper presents conditions under which a utilitarian in an initial position, with some similarity to Rawls's original position, would choose the Rawlsian difference principle. The choices coincide only under the unrealistic assumption that redistribution entails no efficiency loss.     

Autonomous weapon system: Law of armed conflict (LOAC) and other legal challenges

The legality of autonomous weapon systems (AWS) under international law is a swiftly growing issue of importance as technology advances and machines acquire the capacity to operate without human control. This paper argues that the existing laws are ineffective and that a different set of laws are needed. This paper examines several issues that are critical for the development and use of AWS in warfare. It argues that a preemptive ban on AWS is irrelevant at this point and urges the appropriate authorities to develop a modern legal framework that is tailored to embrace these state-of-the-art weapons as the Law of Armed Conflict (LOAC) develops. First, this paper explores the myriad of laws designed to govern the potential future development and deployment of artificial intelligence and AWS in the context of International Humanitarian Law or LAOC. Second, the paper argues that it will be challenging for AWS to fulfill the requirements laid out under the International Committee of the Red Cross and LOAC for the rules of humanity, military necessity, distinction, proportionality and precaution, especially as it is related to noncombatants. Third, the paper discusses command responsibility and argues that states should establish accountability for wrongful acts committed by the AWS. Finally, this paper contends that there is an urgent need for a new legal framework to regulate these AWS and presents different solutions for the legal framework of AWS.     

Markets in Health Care: The Case of Renal Transplantation

This article explores the ethics and economics of a market in donated kidneys in the United States. With the impending changes in the health care system, the author argues that a full turn to the market for distribution of kidneys is not appropriate. However, he would sanction a regulated market, as outlined in the article.     

The Rise of Committees

Committees are of increasing importance in the process of EC policy-making, particularly in regulatory fields which touch upon politically sensitive issues. This article discusses the problems which have arisen due to the unforeseen emergence of committees within the institutional framework of the Community. It examines the main institutional conflicts in relation to committees and argues that parliamentary disdain for Comitology notwithstanding, the use of committees in the area of social regulation may be explained through a 'Member State-oriented' understanding of the institutional balance of powers. Committees may thus not only contribute to more effective decision-making, but may also secure a degree of subsidiarity. The increasing reliance on committees, however, might nonetheless be argued to detract from the general legitimacy of Community decision-making, especially since committees remain creatures of pragmatism. This article accordingly argues that the lack of transparency within committees, and the absence of general procedural rules upon the activities and composition of committees, should now be compensated for through the evolution of formal and generalisable procedural rules.     

Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

This article contrasts policy advocacy of alternative dispute resolution, and demonization of lawyers and court proceedings in family law, with research evidence that calls those policy positions into question. The research demonstrates, broadly, that restrictions on the availability of publicly funded legal representation do not necessarily lead parties to choose alternative resolution processes, that lawyers are much less adversarial than self–representing litigants, and that lawyer representation and litigation may produce more satisfactory and appropriate outcomes than mediation in some kinds of family disputes. The article argues that legal aid policies should respond to these realities rather than clinging to adversarial mythologies.     

The Legal Basis for Using Principles in WTO Disputes

This article argues that the use of principles in WTO disputeresolution is both necessary and desirable. However, Panelsand the Appellate Body (WTO Tribunals) have often ignored principlesor not clearly identified the legal basis for their use. Thisarticle establishes a framework for the use of principles (inparticular principles of WTO law, principles of customary internationallaw, and general principles of law) in WTO dispute settlement.Broadly, WTO Tribunals can use principles drawn from these categoriesto interpret WTO provisions, based on Article 3.2 of the DSU,and Articles 31 and 32 of the VCLT. This follows most directlyfrom a teleological approach to interpretation, but principlesalso feature under subjective and textual approaches to interpretation.WTO Tribunals may also use certain principles in a non-interpretativemanner. Indeed, this may be necessary, particularly to addressprocedural issues. Precisely how a principle may be used dependson its type, content and status.     

Valuations – or How to Say the Unsayable

In this paper, the author revisits "the emotive theory of value" and argues that values are not entities but nothing other than "linguistic fictions". Accordingly, valuations—i.e., valuing actions—can be defined as approving or disapproving attitudes of a subject to some object. In this perspective, values cannot be true or false: What we can do is just compare them with regard to strength. As a consequence, value judgments are to be understood as sentences which are used either to say that a subject s values an object o positively or negatively, or to express (evince) a valuation. The author then shows some relations between normative and evaluative discourses. First, he claims that norms as well as valuations are not true or false. Second, he argues that both may be explained or justified, even if the former are usually justified teleologically whereas the latter are explained referring back to the subject's background and life-style. Third, he notes that a legal order originates from the fact that valuations "crystallize" into norms. Finally, the author examines some further questions related to his analysis. In particular, he argues that the different realms of values, e.g., morals, aesthetics, politics, etc., do not correspond to different evaluative attitudes, but to different phenomena and diverse spheres of human life.     

The Aliens Act 1905 and the Immigration Dilemma

This article considers the political context, legal framework, and administrative structures of the Aliens Act 1905. It points out the contradictions and inconsistencies of the Act and argues that these represent a wider ambivalence about the merits of control and a conflict between exclusionary and inclusive impulses. These inconsistencies, rather than undermining the Act, permitted the Act to fulfil a number of conflicting unofficial purposes. The article argues that this ambivalence persists and governments continue to seek to satisfy all sides leading to apparently incoherent legal formulations which nonetheless provide for fragile compromises.