The Zeal of the Civil Advocate

This article is concerned with the accountability of the civil advocate for results obtained for a client. It distinguishes the criminal trial by arguing that for effective implementation the adversary system, as it is commonly understood, requires that the professional advocates be equally competent and equally adversary and that because it does not meet these criteria, the criminal trial cannot be looked to as a model either of the adversary system or of the behavior of advocates in the civil trial. Rules of behavior for the civil litigator should be drawn with the primary objective of ascertaining truth. Moreover, the civil litigator cannot claim immunity from moral accountability by reference to the lawyer's role; he or she is personally accountable for an immoral result obtained for a client. Seeking to avoid this accountability all lawyers might reject an immoral but lawful cause, so that persons with such causes would be deprived of professional representation. The conflict between the lawyer's personal morality and the social value of professional assistance is resolved by reference to a formula for assigning counsel similar to those in Mathews v. Eldridge and Lassiter v. Department of Social Services. The author analyzes the moral dilemma of a lawyer who is so assigned and proposes a solution.     

The Hysterical Attorney: The Legal Advocate Within Lacanian Discourse Theory

In this essay, I apply Jacques Lacan'sfour discourses to the legal profession. A lawyer –i.e. a legal expert – engages in the Master'sdiscourse when he writes the law; he engages in theUniversity discourse when he interprets or attempts tojustify the law. In contrast, an attorney – i.e. a legal advisor – engages in the Analyst'sdiscourse when she counsel's her client; she engagesin the Hysteric's discourse when she represents herclient. From a Lacanian perspective, the two lawyer'sdiscourses are masculine, while the two attorney'sdiscourses are feminine. I divergefrom Lacan's view that the Analyst's is the mostradical discourse. The insight gained throughanalysis can only challenge and change the law iftranslated through the Hysteric's discourse. Consequently, despite dominant sexual stereotypes tothe contrary, to be an effective advocate should takeon a radically hysteric femininity.     

Playing Devil's advocate†: The case against fMRI lie detection

The advent of functional neuroimaging raises the intriguing possibility that investigators might be able to determine (one day) whether an individual is lying or telling the truth, according to the activity of their brain. Ultimately, such techniques might be applied in the forensic sphere. However, the empirical data supporting this conjecture derive from a body of work that is still early on in its development. Hence, when invited to play ‘Devil's advocate’, the author is prompted to critique a pivotal weakness within the current literature. The latter comprises 16 peer‐reviewed functional magnetic resonance imaging studies purporting to describe the neural correlates of lying. Most have demonstrated greater activation of prefrontal regions while participants lie relative to when they tell the truth. Most have failed to detect areas where truthfulness elicits specific activation (consistent with the view that truthfulness constitutes a ‘baseline’ in human cognition and communication; while lying requires something more). However, there is a great deal of variation between the findings described and, crucially, there is an absence of replication by investigators of their own findings. Hence, basic issues of reliability need to be addressed before functional neuroimaging is applied to cases that matter in the ‘real world’.     

Advocate General's opinion regarding challenges to distinctiveness

Formal invalidity or revocation proceedings must be broughtin order for the distinctiveness of a mark to be challenged;challenges to distinctiveness must not derive from the defendant'suse of an infringing mark.     

Supplementary protection certificates: Advocate General's opinion on formulations

The opinion of Advocate General Léger, published on 24November 2005 in C-431/04, opens the way for extending the durationof certain pharmaceutical formulation patents by means of asupplementary protection certificate (SPC).     

The Devil's Lettuce: Primary Caregivers have the Constitutional Right to Distribute Medicinal Marijuana to Their Terminally Ill Child

Pediatric cancer is a tragedy that affects many American families. Despite the effectiveness of pediatric cancer treatments, patients experience adverse side effects that can be relieved by medical marijuana. However, medicinal marijuana is only lawful in twenty‐eight states, including the District of Columbia. This Note proposes that all fifty states enact compassionate‐use statutes permitting parents to lawfully possess and distribute the herb to their terminally ill child (between the ages of five to fourteen) to alleviate the effects of cancer treatments. Medicinal marijuana use provides pediatric cancer patients with better‐quality lives and the determination to win the war against cancer.     

Advocate Safety Planning Training,Feedback, and Personal Challenges

Of all the advocacy services provided to partner violence and sexual assault victims, safety planning may be most central. However, unlike many community behavioral health or case management services, there is virtually no literature on standards of care in safety planning, ways to measure its effectiveness, or discussion of the challenges advocates face in their day-to-day practice of planning for victim safety. The purpose of this paper is to describe advocate perceptions of training and supervision, how they obtain feedback about their work with victims, and their personal challenges in safety planning with victims. Study results highlight the need for more guidance, training, and support as well as more coping strategies for the numerous personal challenges advocates face in their day-to-day safety planning work. Implications for research and practice are discussed.     

“修正的共犯二重性说”之提倡

共犯从属性说以正犯着手实行犯罪为前提来限定共犯的可罚性,其虽有利于彰显人权保障机能,却无法充分实现法益的保护机能;共犯独立性说以共犯行为本身来把握共犯的可罚性,其虽能充分保护法益,却不利于人权保障机能的实现.我国学界所言的“教唆犯二重性说”,误解了共犯从属性说与共犯独立性说的本旨,本质上并不是真正的共犯二重性说.韩德两国关于共犯的规定立足于共犯从属性说与共犯独立性说的本旨,并予以一定的折中,从而实现了人权保障机能与法益保护机能之间的有机协调,才是真正意义上的的共犯二重性说.比较而言,德国的规定更为合理,值得借鉴与提倡.     

盗窃罪保护法益的理论嬗变与司法抉择——新修正的所有权说之提倡

关于财产罪保护法益究竟采取所有权说还是占有说,在德日刑法以及我国刑法理论之中均存在较大争议。就一般情形而言,无论采取所有权说或者占有说,对案件的定性并不存在分歧,但是在特定案件中对定罪量刑具有实质性影响。立足于我国刑法的相关规定以及司法解释的立场,对盗窃罪保护法益应当提倡新修正的所有权说。对于司法实践中发生的所有权人擅自处置被公权力机关依法扣押、查封的财物,擅自取回处于他人合法占有之下的财物以及以非法手段侵害他人占有的违禁品、赃物的案件,在新修正的所有权说指导下均能得出妥当且统一的结论。     

Advocate General says comparative advertising is not a matter of trade mark law

According to Advocate General Mengozzi, trade mark infringementis not relevant in assessing the legality of a third party'suse of an identical trade mark or similar sign in comparativeadvertising, but such advertising is governed exhaustively byArticle 3a of the Misleading Advertising Directive (84/450),as amended by the Comparative Advertising Directive (97/55)(‘CAD’).     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Law Enforcement Advocate Program: An Interagency Collaboration to Enhance Community‐Police Relations and Improve Outcomes for Substance‐Using Offenders

Justice system involvement is highly correlated with substance‐use issues. Untreated, substance‐using offenders are likely to continue to use drugs, commit crimes, and pose a public safety risk. Strategies to address substance use in the criminal justice system often fall short in terms of integrating services and sustaining engagement among high‐risk adult and juvenile populations. Law enforcement can help to bridge identified gaps by offering a community‐based solution to the interrelated challenges of substance use, crime, and recidivism for offenders. The Law Enforcement Advocate Program has been effective in improving probationer compliance and outcomes, facilitating problem solving and interagency coordination, and improving community‐police relations.