UPHOLDING STUDENTS’ DUE PROCESS RIGHTS: WHY STUDENTS ARE IN NEED OF BETTER REPRESENTATION AT,AND ALTERNATIVES TO,SCHOOL SUSPENSION HEARINGS

Suspension is the most common form of discipline in our schools. In some cases students facing suspension are removed from school for an extended period of time or referred for expulsion based on the findings made at the student's suspension hearing. Nevertheless, students have no legal right to have counsel participate in, or advocate at, suspension hearings. Additionally, schools for the most part do not offer students alternatives to suspension, such as mediation sessions or other programs designed to allow students to complete school or community work while on suspension. This Note discusses the problems associated with school suspension and suspension hearings. It also explains why providing students with legal advocates at suspension hearings will help promote due process and facilitate better decision making on the part of the student. Finally, it advocates for mediation as an alternative to suspension and suspension hearings, as research suggests that mediation would reduce suspension rates and the costs associated therewith.     

ADR中的国际商事调解制度及其对中国的启示

国际商事调解制度是ADR的重要组成部分。近年来，一方面由于它能够在协商解决问题的同时实现争议方利益的最优分配而在争端解决中备受青睐，另一方面又因为缺乏法律强制力等缺陷而导致在中国解决商事争端的实践中阻碍重重。调解和仲裁相互配合的多元化设计，应该是既节约成本又利益最优的不错选择，这一切还需要中国相应的国内立法予以确立。     

The Justiciability of Resource Allocation

A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between 'discretionary allocative decision-making' and 'allocative impact.' The non-justiciability doctrine in R v Cambridge Health Authority , ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.     

The Continuing Conceptual Crisis in the Common Law of the Contract of Employment

The effects on the common law of the contract of employment of the decision of the House of Lords in Johnson v Unisys Ltd are considered. The focus is on liability rather than remedies. It is argued that the case created conceptual instability in the common law understanding of a breach of a contract of employment. The logical consequence of the majority reasoning is that in some cases the existence or not of a breach by an employer is contingent on an employee's reaction. Relevant case law history and developments since the Johnson decision inform a detailed critique of the arguments that underpinned it. A solution is suggested according to which, prima facie, contracts of employment would be required to be performed in accordance with terms that have been implied by law.     

The ex turpi causa principle in Hounga and Servier

In Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.     

The Tragic Plight of HIV-Infected Haitian Refugees at Guantanamo Bay

Last June marked the 14th anniversary of the closing of the world’s first, and only, HIV camp at Guantanamo Bay. This article revisits the infamous legacy of the Guantanamo Bay camp and the plight of the HIV-infected Haitian political refugees during the early 1990’s. Part I summarises the development of the United States’ immigration policy and the government’s history for excluding immigrants for health related reasons. Part II details the factual and historical background leading to the mass exodus of the Haitians and the sequence of tragic events which resulted in their confinement at Guantanamo Bay. Part III focuses on the seminal case of Haitian Centers Council, Inc. v. Sale (II) (Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028, 1049 (E.D.N.Y. 1993)) which was responsible for bringing about the closure of the HIV camp and granting parole to all HIV-infected refugees to enter the United States. The anticipated revolutionary reform of the HIV-exclusion policy emanating from this legal triumph never materialized. The United States government successfully sought to have the case vacated from the Court’s books. Consequently, the landmark precedent does not technically exist today. What does remain is the notorious HIV-exclusion policy which was distorted by the United States government to justify their detainment. Although the epic legal and emotional struggles of the Haitians are forgotten by many, the legacy of Guantanamo Bay continues to haunt the lives of those who were prisoners of the HIV camp.     

A Portrait of the (Tortured) Artist as a Young (Coloured) Man: Reading Arthur Nortje

This article examines Robert Semple’s Walks and Sketches at the Cape of Good Hope (1803), a largely forgotten early colonial text which intriguingly blends the genres of travel writing and the sentimental novel. My analysis seeks to place the text within the longer genealogies of South African literature in English by arguing that it anticipates a number of the central concerns this literature, among them sympathy for the suffering of others, the representation of racial and social difference, and the fracturing of metropolitan literary protocols in the colonial context.     

Pammer and Hotel Alpenhof - ECJ decision creates further uncertainty about when e-businesses “direct activities” to a consumer’s state under the Brussels I Regulation

The European Court of Justice’s recent judgement in the joined cases C-585/08 and C-144/09 will have substantial long-term implications for European e-businesses and e-consumers trading across borders.The key question considered was whether the fact that a website can be consulted on the Internet in the Member State of the consumer’s domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of the Brussels I Regulation.     

凯洛案后美国土地征收立法新动向

凯洛案后美国联邦和州层面的新立法对于土地征收权的动用施加更多限制的同时,也规定了很多例外的情形,对于“公共使用”涵义的解读要想回归到狭义的、语义学上的原点几乎是不可能的,为了特定的经济发展目的而动用土地征收权还是有相当市场的。如果将新立法中体现的优先权制度、额外补偿制度、综合规划制度、公益与私益权衡制度与特定的经济发展目的结合起来考量的话,土地征收权动用范围的适度扩大就多了更多的合理性基础。     

Constitutional limitations of the privacy framework advanced in Eisenstadt v. Baird and Roe v. Wade

This paper examines the role of framing in advancing a progressive sexual and reproductive rights agenda. U.S. Supreme Court decisions including Griswold v. Connecticu and Eisenstadt v. Baird helped establish legal precedent invoking a ＂privacy framework＂ for subsequent cases including Roe v. Wade （as well as Doe v. Bolton and, more recently, Lawrence v. Texas）. This paper highlights the limitations of the privacy framework while exploring more potentially efficacious frames.