Freedom and choice in constitutional law

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind - freedom, which protect the right to make choices - pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire notion that all persons (including incompetents) are to be treated identically, the instrumental idea that granting freedoms to incompetents achieves extrinsic goals such as training, and the surrogate notion that persons who cannot make choices for themselves should be able to have those closest to them choose on their behalf. Professor Garvey concludes that, when these options fail and the state takes an incompetent person under its control, the state owes to the incompetent the full package of duties owed by other guardians to those under their control, including treatment in the case of the mentally ill or education in the case of children.     

动物福利法及其相关案例探析

前不久 ,在中国的广州、武汉等地流行起了吃猫肉。《羊城晚报》美食版上公然刊出一则广告 :“进补 ,我们吃猫。”一些食客认为 ,吃猫肉不仅能滋阴壮阳 ,还能治病。在此之前 ,肯尼亚也发生了一起吃猫肉事件 ,据报道 ,在圣诞节即将来临之前 ,该国东部一个叫莫罗罗村的三个学生因为吃了一只猫而被警方拘捕。有独无偶 ,2 0 0 2年1 1月 ,日本川崎市政府职员上原宏之为发泄胸中郁闷将2 3只猫相继残害致死一事被告发 ,在东京地方法院开庭审理此案时 ,检察方面要求判此人半年徒刑。目前在我国 ,任凭食客们大吃特吃 ,最多会有卫生检疫部门对肉食的卫…     

The big circle boys: Revisiting the case of the flaming eagles

Asian criminals known as the ‘Big Circle Boys’ (BCB) are a growing concern to law enforcement agencies in Canada and the United States. However, no academic study has been undertaken to investigate them. This paper examines whether there is any basis for identifying the BCB as a criminal group. The background of the BCB is briefly discussed, and a case study from the ‘first-generation’ BCB is presented, using a criminal memoir and testimonial evidence. The ‘Flaming Eagles’ is shown to be an organisation comprising several BCB subgroups, unified by leader Johnny Kon. This criminal group had membership procedures and rules, and was primarily involved in the heroin trade. Within the organisation, there was no clear division of labour except for the specialised role of the courier. Three distinct levels of hierarchy were apparent during most of its existence, except for the period when a five-person committee was in place. Internecine wars accounted for some of the fatalities among members and associates, while the rest were mostly attributed to assassination orders resulting from business disputes or betrayal. Analytical definitions are also surveyed for the criminal organisation models of organised criminal group (OCG), mafia and criminal firm. The Flaming Eagles is found to best fit the criminal firm model, since it lacked the territoriality characteristic of an OCG and did not provide protection as mafias do.     

The German Facebook case: the law and economics of the relationship between competition and data protection law

European Journal of Law and Economics - Can competition law consider effects on privacy, or should privacy concerns of data-collecting behaviour only be dealt with by data protection law? In this...     

侵权法立法模式:全面的一般条款+全面列举

一、一般条款模式     

提单法律选择条款探微

提单中的首要条款、地区条款和法律适用条款均涉及法律选择问题,只有法律选择条款才具有选择提单准据法的功能.认定提单条款是否属于法律选择条款,主要应当依据当事人的真实意思表示,而不是该条款的名称.提单法律选择条款在性质上是以冲突法为内容的合同,该合同本身是否合法,由法院地的冲突法决定;该合同的成立和效力,受该合同本身的准据法支配.     

论非法集资的证券化趋势与新调整方案

我国非法集资呈现出与广义证券投资相关的证券化趋势。现有调整非法集资的制度规范有非刑法规范与刑法规范,其中以非法吸收公众存款罪与集资诈骗罪为主的刑法调整存在明显缺陷,非法集资的制度规范需要做证券法角度的改进。解决制度性的非法集资问题,必须确立证券非公开发行融资制度标准,扩张合法融资途径,将公司企业的经营性、证券性投融资行为归于证券法调整。引导证券化民间集资关系转化为民间证券融资关系,通过证券融资的规范调整,调整民间融资的行为,用是否违反证券法作为判断民间融资行为的标准。     

The choice of crime: An empirical analysis of juveniles' criminal choice

This article applies the theory of individual rational choice to micro data on the criminal activity of juveniles. The individual choice model is developed and applied to data on 1,171 files on property offenses adjudicated by the Family Court between 1972 and 1976.It is found that the type of crime chosen, as indicated by the charge at the time of arrest and the final charge, is influenced by sex, age, number of prior referrals to the court, ethnic extraction, and place of residence of the juvenile. As the effect of each of these individual characteristics on the probability of selecting the various crimes differs, the choice of crime exhibits dynamic features; as the individual age increases, and as the number of prior referrals to court increases, the probabilities of selecting particular crimes change. These features are examined by generating the probabilities and examining the patterns which emerge.     

The treatment of prisoners: International standards and case law

Objective. In some countries questions are asked about the extent to which human rights should be applied to those who have been detained in prison, particularly if they have been convicted of a criminal offence. However, the international human rights treaties and instruments are quite clear that detained persons are entitled to all human rights that are not expressly removed by the fact of their detention. Method. This article describes in detail what these standards are and how they apply to imprisonment. It also considers how these issues have been interpreted judicially by the European Court of Human Rights and the lessons to be learned from its increasing body of case law. Conclusion. All those who are involved in the management of prisons or who deal in any way with prisoners must always bear in mind ‘the inherent dignity of the human person’. This obligation applies particularly to psychologists and others who develop programmes and other activities aimed at influencing the future behaviour of prisoners.     

Revisiting the decline in remarriage in early-modern Europe: The case of Rheims in France

Many were the European towns where remarriage frequency declined, especially for widows, in the 17th and 18th centuries. This article investigates how remarriage models evolved in France, basing our analysis on vital events collected for the fourteen parishes of the town of Rheims in Champagne. A large set of Family Reconstitution Forms for the period 1668-1802 allows the study of remarriage among urban widows and widowers. Through four successive periods of time, we observe changes in remarriage behaviour in this preindustrial center as a case study, in a gender comparative perspective. In urban surroundings, in the late 18th century, strategies of remarriage may have been more flexible than in rural areas. Women were less exposed to family and social pressure preventing them to remarry, discouraging or delaying a new union. The presence of dependent children was always a problem when a widow tried to choose a new partner. It was easier for a man to remarry. A widower used to take a new wife quickly and a younger one, if possible without children at charge. A specific aspect of the urban context was population geographical turn-over and changing labour markets. It would explain, at least partly, the decreasing proportion of remarriages in Rheims. Female urban surplus was a constant, affecting the chances for remarriage, particularly in large European cities.     

Causes in the construction of causal law: A psycho-ecological model

The article presents an integrated psycho-ecological model of the construction of law, with implications for practice in law and mental health. The model is based on a series of concentric circles, each representing a layer of influence on the construction of law. The circle furthest removed from the center represents the influence of culture, society and industry, in particular, and the circle at the center of the circle represents the case at hand, for example, about individual complainant or mass action. The article begins by arguing that basic terms in relation to cause need clarification and also work is needed to disambiguate the concepts involved. After dealing with these issues, the article examines science and mental health. Is the scientific evidence presented by the expert sufficiently reliable and valid to meet admissibility standards of good compared to poor or junk science? Is the research undertaken for court or presented to court biased, with factors hidden, such as links to industry. Are individual evaluations conducted with biased science serving to justify partial conclusions? The dangers of powerful influences on the construction of law are highlighted, for example, related to the individual complainant malingering and the insurance industry protecting its financial interests at the expense of genuinely injured patients. In conclusion, suggestions for empirical research are offered.