His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Access to the health records of deceased patients: Why the law is in need of review

A glance at the cases that came before the UK Information Commissioner's Office (ICO) in the period between 2005 and 2008 immediately shows that a consistently high number relate to access to the health records of deceased patients. What accounts for this interesting state of affairs? This paper aims to demonstrate that the law regulating this increasingly important area is a patchwork of case law, statutes and professional guidelines that do not always lend themselves to a congruous and seamless amalgamation. This has in turn resulted in the need for creative interpretation and at times legal gymnastics on the part of the ICO and medical professionals. We argue that in an age where allegations of medical negligence are proliferating (and access to the health records of the deceased could help confirm or dispel suspicions of wrongdoings leading to the death) and where genetic information about a deceased relative could offer valuable support to a living patient's preventative care, diagnosis and treatment plans, the law regulating access to the health records of deceased patients in the UK can no longer afford to be unclear and confusing. There is, therefore, an urgent need for review.     

The effectiveness of mediation: An independent analysis of cases handled by four major service providers

A study of 449 cases administered by four major providers of ADR services showed that mediation was capable of settling 78 percent of cases, regardless of whether the parties had been sent to mediation by a court or had selected the process voluntarily. Mediation also cost far less than arbitration, took less time, and was judged a more satisfactory process than arbitration.Jeanne M. Brett is the DeWitt W. Buchanan, Jr. Professor of Dispute Resolution and Organizations at the Kellogg Graduate School of Management, Northwestern University, Evanston, Ill. 60208     

The Strategic Use of Interests,Rights, and Power to Resolve Disputes

To ensure success in resolving difficult disputes, negotiators mustmake strategic decisions about their negotiation approach. In this essay,we make practical recommendations for negotiation strategy based on Ury,Brett, and Goldberg's (1993) interests, rights, and power framework fordispute resolution and subsequent empirical research by Brett, Shapiro, andLytle (1998). We discuss how negotiations cycle through interests, rights,and power foci; the prevalence of reciprocity; and the one-sided,distributive outcomes that result from reciprocity of rights and powercommunications. We then turn to using interests, rights and powerstrategically in negotiations. We discuss choosing an opening stragegy,breaking conflict spirals of reciprocated rights and power communications,and when and how to use rights and power communications effectively innegotiations.