Showing papers on "Common law published in 2002"

Courts: the Lex Mundi Project

Abstract: In cooperation with Lex Mundi member law firms in 109 countries, we measure and describe the exact procedures used by litigants and courts to evict a tenant for non-payment of rent and to collect a bounced check. We use these data to construct an index of procedural formalism of dispute resolution for each country. We find that such formalism is systematically greater in civil than in common law countries. Moreover, procedural formalism is associated with higher expected duration of judicial proceedings, more corruption, less consistency, less honesty, less fairness in judicial decisions, and inferior access to justice. These results suggest that legal transplantation may have led to an inefficiently high level of procedural formalism, particularly in developing countries.

Courts: The Lex Mundi Project

Abstract: In cooperation with Lex Mundi member law firms in 109 countries, we measure and describe the exact procedures used by litigants and courts to evict a tenant for non-payment of rent and to collect a bounced check. We use these data to construct an index of procedural formalism of dispute resolution for each country. We find that such formalism is systematically greater in civil than in common law countries. Moreover, procedural formalism is associated with higher expected duration of judicial proceedings, more corruption, less consistency, less honesty, less fairness in judicial decisions, and inferior access to justice. These results suggest that legal transplantation may have led to an inefficiently high level of procedural formalism, particularly in developing countries.

Recovering Canada: The Resurgence of Indigenous Law

Abstract: Canada is covered by a system of law and governance that largely obscures and ignores the presence of pre-existing Indigenous regimes. Indigenous law, however, has continuing relevance for both Aboriginal peoples and the Canadian state. In his in-depth examination of the continued existence and application of Indigenous legal values, John Borrows suggests how First Nations laws could be applied by Canadian courts, and tempers this by pointing out the many difficulties that would occur if the courts attempted to follow such an approach. By contrasting and comparing Aboriginal stories and Canadian case law, and interweaving political commentary, Borrows argues that there is a better way to constitute Aboriginal / Crown relations in Canada. He suggests that the application of Indigenous legal perspectives to a broad spectrum of issues that confront us as humans will help Canada recover from its colonial past, and help Indigenous people recover their country. Borrows concludes by demonstrating how Indigenous peoples' law could be more fully and consciously integrated with Canadian law to produce a society where two world views can co-exist and a different vision of the Canadian constitution and citizenship can be created.

Public Vows: A History of Marriage and the Nation

Abstract: Public Vows: A History of Marriage and the Nation. Nancy E Cott. Cambridge, MA: Harvard University Press. 2000. 297 pp. ISBN 0-674-- 00320-9. $27.95 (cloth). In this synthesis of the substantial historical literature about marriage, historian Nancy Cott demonstrates that an institution we have traditionally labeled private has in fact always served public purposes, operating through the apparatus of the state. Marriage laws, in the service of moral, economic, and civic objectives, have shaped and continue to shape gender roles inside the home and out; they control the choice of suitable partners, at times in the past establishing racial barriers and at present determining the (il)legitimacy of samesex unions. In addition, marriage law trenches on the conveyance of citizenship, which affects both nationality and suffrage. Most citizens most of the time accept and therefore confirm legal limits; others resist, making marriage law over time a common site of contest about social mores. The revolution that separated the United States from Great Britain affected not only international relations and domestic legal systems; marriage theory also incorporated the repudiation of subjection implicit in monarchical governments. American women "consented" to be governed by husbands of their own choosing, although they lost substantial autonomy when they did so. But the American form of marriage reflected the values not only of a democratic republic but also of a Christian nation. During the nineteenth century and into the twentieth, Native Americans, European and Asian immigrants, religious dissidents such as the Mormons, Utopian socialists-all who espoused nonmajoritarian marital practices could not withstand the demands of Congress and of states that families form themselves into the units prescribed by the Christian church. Thus, tribal arrangements, polygamy, "common law" couples, and communities of "free lovers" largely disappeared by 1900, while tolerance of arranged marriages vanished in the twentieth century. "If marriages produced the polity," Cott notes, "then wrongfully joined marriages could be fatal" (p. 155). Choice and consent notwithstanding, Christian marriage doctrine could countenance rules making interracial marriage unacceptable; and if marriage signified state-sanctioned sexual association, laws controlling prostitution and sex outside of marriage (through restrictions on abortion and birth control) represented the other side of the coin-all in the service of a single model of marriage. …

Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy

Abstract: Breaking out : the proliferation of actors in the international system / Anne-Marie Slaughter -- Transnational advocacy networks and the social construction of legal rules / Kathryn Sikkink modern law as a secularized and global model : implications for the sociology of law / Elizabeth Heger Boyle and John W. Meyer -- What institutional regimes for the era of internationalization? / Robert Boyer -- Between liberalism and neoliberalism : law's dilemma in Latin America / Jeremy Adelman and Miguel Angel Centeno -- Legal education and the reproduction of the elite in Japan / Setsuo Miyazawa with Hiroshi Otsuka -- Cultural elements in the practice of law in Mexico: informal networks in a formal system / Larissa Adler Lomnitz and Rodrigo Salazar -- The discovery of law : political consequences in the argentine case / Catalina Smulovitz -- Hybrid(ity) rules : creating local law in a globalized world / Heinz Klug -- Legitimating the new legal orthodoxy / Yves Dezalay and Bryant G. Garth.

The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence

Abstract: The Cheyenne Indians, in sharp contrast to other Plains tribes, are renowned for the clear sense of form and structure in their institutions. This cultural trait, together with the colorful background of the Cheyennes, attracted the unique collaboration of a legal theorist and an anthropologist, who, in this volume, provide a definitive picture of the law-ways of a primitive, nonliterate people. This foundational study of primitive law presents the folkways in law of the Cheyennes through the technique of the American case lawyer, adjusted to the requirements of the anthropologist with his scientific understanding of human behavior and realistic sociology. Particularly appealing to the general reader are the law cases themselves. Based on individual episodes that reflect the legal procedure of the Cheyennes over a period of more than sixty years, the cases are heroic narratives in the finest tradition.

The Common Law Genius of the Warren Court

Abstract: The Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.

The medieval origins of the 'Financial Revolution': usury, rentes, and negotiablity

Abstract: The basic thesis of this article is that the essential origins of the modern ‘financial revolution’ were the late-medieval responses, civic and mercantile, to financial impediments from both Church and State, concerning the usury doctrine, that reached their harmful fruition in the later thirteenth and early fourteenth century. That ‘financial revolution’, in terms of those national institutions for government borrowing and international finance, involving negotiable securities, in the form of annuities or rentes, and bills of exchange, is generally thought to have originated in eighteenth century England; but as James Tracy has earlier shown it first took place, on a fully national basis, in the sixteenth-century Habsburg Netherlands. The major obstacle from the Church was of course the usury doctrine, and more accurately the final evolution of this doctrine in Scholastic theology and canon law, along with the intensification of the campaign against usury from the early thirteenth century. The major obstacles that the State provided, with the spreading stain of ever more disruptive international warfare from the 1280s, were the nationalistic bullionist philosophies and related monetary-fiscal policies (to finance warfare) that together hindered the international flow of specie in later medieval Europe. For public borrowing, one must begin with the contentious policies of Venice, Florence, and other Italian city states in basing their finances on forced loans, which did pay interest, and thus with the usury controversies that erupted, over not just such loans, but the sale of interest-bearing debt certificates in secondary markets. The alternative solution, found elsewhere – first in northern French towns from the 1220s -- and one that would govern European public finance up to the nineteenth century, was to raise funds for urban governments through the sale of rentes, both life-rents (one or two lives) and hereditary or perpetual rents. These were not in fact loans but annuities, and hence they were not usurious, because the buyer of such rentes had no expectation of repayment (unless the government chose to redeem them); instead they represented the purchase of a continuous future stream of income (for at least one lifetime). Those rentiers who sought to regain some part of their invested capital had only one recourse: to seek out buyers in secondary markets. The true efficiency of modern public finance also rested upon the development of such markets and thus upon the development of full-fledged negotiablity; and public finance also depends upon satisfactory instruments to permit low risk, low cost international remittances. The solution to both problems lay in the development of the negotiable bill of exchange. Such bills, at first non-negotiable, emerged in the late thirteenth century as a response to circumvent not only the usury doctrine (to ‘disguise’ interest payments in the exchange rate) but also the almost universal bans on bullion exports. Yet another barrier that medieval English merchants faced was the virtual absence of deposit-banking because of the crown’s strict monopoly on the coinage and money supply, so that the usual origin of such banking, in private money-changing, was unavailable. Although English merchants sought remedies by using transferable commercial bills, they were not truly negotiable, for they had no legal standing in Common Law courts. But from the late thirteenth century, the Crown was incorporating the then evolving international Law Merchant into statutory law, and it also established law merchant courts, which did give such financial instruments some legal standing. In 1436, a London law-merchant court was the first, in Europe, to establish the principle that the bearer of a bill of exchange, on its maturity, had full rights to sue the ‘acceptor’ or payer, on whom it was drawn, for full payment and to receive compensation for damages. From that precedent, and then from those provided by similar law-merchant court verdicts in Antwerp and Bruges (1507, 1527), the Estates General of the Habsburg Low Countries (1537-1541) produced Europe’s first national legislation to ensure the full legal requirements of true negotiability – including the right to sue intervening assignees to whom bills had been transferred in payment. These Estates-General also legalized interest payments (up to 12%), thus permitting open discounting, another obviously essential feature of modern finance, private and public. Antwerp itself, with the foundation of its Bourse in 1531, became the international financial capital of Europe, especially as a secondary market in national rentes – the very instrument that became the foundation of English public finance, in the form of annuities, from the 1690s.

The Law of Environmental 'PPMs' in the WTO: Debunking the Myth of Illegality

Abstract: This Article explains and appraises the WTO law of Processes and Production Methods (“PPMs”). A better understanding of the law and of how PPMs operate can help governments and stakeholders improve the management of outwardly directed PPMs. Governments presently have divergent views about WTO rules. These diverging views have led to an inside-out debate from which a political consensus cannot easily emerge. This Article examines the relevant WTO case law on the issue of PPMs and concludes that PPMs are, contrary to some commentators, not prohibited by the WTO. Finally, the Article shows how a correct legal reading may enable new integrative solutions that resolve trade and environment tensions and establish a better framework for preventing inappropriate PPMs.

Apology in the Criminal Justice Setting: Evidence for Including Apology as an Additional Component in the Legal System

Abstract: The criminal justice system has reached unprecedented scope in the United States, with over 6.4 million people under some type of supervision. Remedies that have the potential to reduce this number are continually being sought. This article analyzes an innovative strategy currently being reconsidered in criminal justice: the apology. Despite a legal system that only sporadically acknowledges it, evidence for the use of apology is supported by social science research, current criminal justice theories, case law, and empirical studies. Social psychological, sociological and socio-legal studies pinpoint the elements and function of apology, what makes apologies effective, and concerns about apology if it were implemented in the criminal justice system. Theoretical evidence is examined (including restorative justice, therapeutic jurisprudence, crime, shame, and reintegration) to explore the process of apology in the criminal justice context. Attribution theory and social conduct theory are used to explain the apology process specifically for victims and offenders. A brief examination of case law reveals that though apology has no formal place in criminal law, it has surfaced recently under the federal sentencing guidelines. Finally, empirical evidence in criminal justice settings reveals that offenders want to apology and victims desire an apology. Moreover, by directly addressing the harmful act, apology may be the link to reduced recidivism for offenders, as well as empowerment for victims. This evidence combined suggests that apology is worthy of further study as a potentially valuable addition to the criminal justice process.

Into the Frying Pan: Standing and Privity under the Telecommunications Act of 1996 and Beyond

Abstract: Any legal system must make a trade-off between two components of optimal law enforcement. The first requires all persons injured by some wrongful conduct to recover full damages in order to create optimal incentives for primary conduct. The second requires some limit on the number of potential of wrongful suits arising out of wrongful conduct, in order to contain the administrative and error costs of legal enforcement. In most practical settings, the second of these concerns has proved more important than the former, which has led to the creation of a practical standing doctrine recognized in the Supreme Court's decisions in Illinois Brick (1977) and Holmes (1992). One component of standing is the so-called privity limitation, which limits suits to parties who are immediate purchasers from the wrongdoer. The privity limitation has applied to common law actions, and to statutory causes of action under both the general antitrust law and direct schemes of regulation. This paper explores the evolution and justifications for the privity doctrine, and then argues that the recent suits, such as Goldwasser (2000) and Trinko (2002) that have allowed indirect purchasers of telecommunications services to have standing against Local Exchange Carriers under the Sherman Act misread the relevant legal authority, and overlooks the important practical function of both standing and privity limitations.

Apology in the criminal justice setting: evidence for including apology as an additional component in the legal system

Abstract: The criminal justice system has reached unprecedented scope in the United States, with over 6.4 million people under some type of supervision. Remedies that have the potential to reduce this number are continually being sought. This article analyzes an innovative strategy currently being reconsidered in criminal justice: the apology. Despite a legal system that only sporadically acknowledges it, evidence for the use of apology is supported by social science research, current criminal justice theories, case law, and empirical studies. Social psychological, sociological and socio-legal studies pinpoint the elements and function of apology, what makes apologies effective, and concerns about apology if it were implemented in the criminal justice system. Theoretical evidence is examined (including restorative justice, therapeutic jurisprudence, crime, shame, and reintegration) to explore the process of apology in the criminal justice context. Attribution theory and social conduct theory are used to explain the apology process specifically for victims and offenders. A brief examination of case law reveals that though apology has no formal place in criminal law, it has surfaced recently under the federal sentencing guidelines. Finally, empirical evidence in criminal justice settings reveals that offenders want to apologize and victims desire an apology. Moreover, by directly addressing the harmful act, apology may be the link to reduced recidivism for offenders, as well as empowerment for victims. This evidence combined suggests that apology is worthy of further study as a potentially valuable addition to the criminal justice process.

The evolution of corporate law: a cross-country comparison

Abstract: Corporate law as it exists in any given country today is the result of roughly 200 years of legal change and legal adaptation. Provisions that today are hailed as indicators for good corporate governance did not exist when the first statutory corporate laws were put in place. This simple insight raises the question about the evolution of corporate law. In this paper we analyze ten jurisdictions representing the three major legal families as well as transplant countries and origin countries to explore the patterns of legal change over time. We find origin countries from common law and civil law families have experienced substantial legal change and adaptation over time. By contrast, legal transplants from both legal families have often retained the transplanted law for decades despite substantial economic change. The area of corporate law where we find the most significant change over time are corporate finance provisions. Provisions concerning corporate governance structures and entry and exit rules are also investigated.

The Law of Environmental 'PPMs' in the WTO: Debunking the Myth of Illegality

Abstract: This Article explains and appraises the WTO law of Processes and Production Methods (“PPMs”). A better understanding of the law and of how PPMs operate can help governments and stakeholders improve the management of outwardly directed PPMs. Governments presently have divergent views about WTO rules. These diverging views have led to an inside-out debate from which a political consensus cannot easily emerge. This Article examines the relevant WTO case law on the issue of PPMs and concludes that PPMs are, contrary to some commentators, not prohibited by the WTO. Finally, the Article shows how a correct legal reading may enable new integrative solutions that resolve trade and environment tensions and establish a better framework for preventing inappropriate PPMs.

The Civil Law

Abstract: ROBERT ANTHONY PASCAL: A PRIEST OF RIGHT ORDER, has been published online as Volume 3 of the Bicentennial Series. The book was edited by Professor Olivier Moréteau, who wrote a twentypage introduction and selected previously unpublished and published writings by Professor Emeritus Robert A. Pascal: AN INTRODUCTION TO THE LIFE AND WORK OF ROBERT A. PASCAL by Olivier Moréteau PART 1 – A MAN OF PRINCIPLE Recollections of a Life Studying and Teaching Law Punishment, Pardon, Parole Natural Law and Respect for Law PART 2 – A MAN OF VISION A Summary Reflection on Legal Education Of the Civil Code and Us Of Trusts, Human Dignity, Legal Science, and Taxes PART 3 – A MAN OF DIVERSE SCHOLARSHIP Updating Louisiana’s Community of Gains Characterization as an Approach to the Conflict of Laws The Italian Legal System: A Book Review BIBLIOGRAPHY The book may be downloaded from the CCLS website.

Religion and Personal Law in Secular India: A Call to Judgment

Abstract: Table of Contents: Introduction: The Secular State in a Religious Society Gerald James Larson Part The Secular State and Legal Pluralism: The Current Debate and Its Historical Antecedents Religion, Personal Law and Identity Granville Austin Religious Minorities and the Law Ruma Pal Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context Susanne Hoeber Rudolph and Lloyd I Rudolph Part 2 Religious Endowments, Reservations Law, and Criminal Law Religious and Charitable Endowments and a Uniform Civil Code John H Mansfield Personal Law and Reservations: Volition and Religion in Contemporary India Laura Dudley Jenkins The Uniform Civil Code Debate: Lessons from the Criminal Procedures Arvind Verma Part 3 Personal Law and Issues of Gender Gender Implications for a Uniform Civil Code Robert D Baird The Personal and the Political: Indian Women and Inheritance Law Srimati Basu Colonialism, Nationalism, and Gendered Legal Subjectivities: Observations on the Historical Destruction of Separate Legal Regimes Kunal M Parker Who Was Roop Kanwar? Sati, Law, Religion, and Post-Colonial Feminism in Contemporary India Paul Courtright and Namita Goswami "Where Will She Go? What Will She Do?" Paternalism towards Women in the Administration of Muslim Family Law in Contemporary India Sylvia Vatuk Part 4 Cross-Cultural Perspectives Affirmative Action in the United States and the Reservation System in India: Some Comparative Perspectives Kevin Brown Personal Law Systems and Religious Conflict: A Comparison of India and Israel Marc Galanter and Jayanth Krishnan The Road to Xanadu: India's Quest for Secularism Rajeev Dhavan

Courts: The Lex Mundi project

Abstract: In cooperation with Lex Mundi member law firms in 109 countries, we measure and describe the exact procedures used by litigants and courts to evict a tenant for non-payment of rent and to collect a bounced check. We use these data to construct an index of procedural formalism of dispute resolution for each country. We find that such formalism is systematically greater in civil than in common law countries. Moreover, procedural formalism is associated with higher expected duration of judicial proceedings, more corruption, less consistency, less honesty, less fairness in judicial decisions, and inferior access to justice. These results suggest that legal transplantation may have led to an inefficiently high level of procedural formalism, particularly in developing countries.

Sanctions for Pollution: Do We Have The Right Regime?

Abstract: The nature of regulatory penalties and appropriate enforcement policies have been well served in the literature on environmental law, but developments are occurring which suggest good reasons for looking at these matters afresh. While governments and environmental lawyers have reiterated traditional concerns that the enforcement of command-and-control regulatory systems is insufficiently effective, they have also explored and encouraged regimes which, because they focus on management structures, incentive devices and forms of self-regulation, seem no longer to rely on conventional sanctions and therefore orthodox deterrence theory. In this paper we focus on a third area of debate. In the United Kingdom, the imposition of sanctions has historically been reserved for the ordinary courts and always subject to the normal processes of criminal justice. Elsewhere in the common law world, particularly in the USA and Australia, there has been a growing tendency to grant powers to the public enforcement agencies to impose ‘civil’ or ‘administrative’ penalties, and without the procedures and protection of the criminal law. There does not seem to have been much by way of attempts to rationalise the use by agencies of these powers, nor to relate them to traditional deterrence theory associated with penal sanctions. This is the goal of our paper. We explore the deterrence dimension to the use of administrative penalties within the context of UK environ-

Knocking on Heaven's Door: Fragmentation, Efficiency and Definance in the Preliminary Reference Procedure

Abstract: In the process towards European constitutional rediscovery, set in motion by the Treaty of Rome, Article 177 (now 234) has been by far the most important instrument of change. By providing the meeting point for the Community and the national legal orders, it has enabled the ECJ, more than any other jurisdictional provision, to define its mandate, establish the Anew legal order, and develop constitutional doctrine. This article discusses the evolution of the preliminary reference procedure and its adjustment to the constitutional pluralism of the Union; it examines selectively the case law on Article 234 in the period between 1998 and the first half of 2002; and assesses trends in the use of preliminary references by national courts. It is divided as follows. The first part traces the development of the preliminary reference procedure. The second part discusses demand and supply for references and the measures chosen to address the mounting increase in the Court's case law. The article then turns to examine recent case-law in three areas: the control of admissibility of references; the definition of court or tribunal; and the jurisdiction of the ECJ to interpret Community measures where they apply by virtue of national law. The next section discusses varying perceptions of the preliminary reference procedure by national courts. The final parts contains concluding remarks.

Clinical issues on consent: some philosophical concerns

Abstract: On occasions, laws on consent are subject to modification, largely on account of being subject to common law rather than statute—for example, in the UK Guideline publications such as the UK Department of Health Reference Guide to Consent for Examination or Treatment are intended to provide information for clinicians on when and how to apply current laws in everyday clinical situations While the extent to which guidelines influence clinician behaviour depends on how much they are read and followed, what is also relevant, and sometimes omitted from consideration, is discussion about underlying philosophical concepts This paper analyses philosophical weaknesses relating to English laws on consent, the main focus of attention being applied ethics and the rights of adults with incapacity It draws comparisons between the US and the UK, and advocates changes in English law in order to help rectify weaknesses in patient protection Discussion includes references to Scottish law, and the use of advance directives, and it voices concerns about over-reliance on "best interests" determinations The problem is partly one of logical analysis, and what can happen is that best interests determinations fail to show proper respect for adults lacking the capacity to consent to examination or treatment on their own behalf This is fundamentally a matter of rights, and requires further investigation and appropriate legal remedies in order to respond to ethical deficiencies in English law as it now stands

Entropy in Property

Abstract: This article suggests that property is subject to a fundamental law of entropy, namely that it is affected by a one-directional bias leading towards increasing fragmentation. The application of the laws of entropy to property further indicates that one can avoid this tendency only in the purely abstract world of zero transaction costs. Building upon this consideration, I consider the choice of remedies in property law, focusing on legal rules that are designed to promote (a) functional, (b) legal, and (c) physical unity in property. I provide examples drawn from both common law and civil law systems, supporting the hypothesis that legal rules are instrumental in combating entropy in property.

Having the Cake and Eating it Too: Efficient Penalty Clauses in Common and Civil Contract Law

Abstract: In this paper we examine one of the areas where there is a marked difference between Civil and Common contract law, that of the enforcement of liquidated damages and more particularly of penalty clauses. Common law judges are quite reluctant to enforce liquidated damages, especially if they believe that they include penalty clauses which are not enforceable. On the contrary, in almost all European contract laws liquidated damages are readily enforced, as are penalty clauses when they are not manifestly excessive. Although most law & economics scholars have criticized Common law courts for the non-enforcement of penalty clauses, there is a sizable minority of scholars who have defended the Common law non-enforcement policy on the ground that penalty clauses are inefficient because they hinder efficient breach. However, and despite the merits of the arguments advanced by advocates of the non-enforcement of penalty clauses, we believe that Common law's rejection of penalty clauses is inefficient. We further show that the Civil law solution to the problem is not only comparatively more efficient, but that it can also appease the worries of those scholars who are afraid that efficient breaches will be deterred. The solution that Civil law systems give to the problem manages to enforce the parties' wishes and to avoid deterring efficient breaches. However, we point out that in order for the Civil law systems to take advantage of this superiority, the interpretation of their Civil Codes should be guided by economic analysis and the respect to the wishes of the contracting parties.

AAPL practice guideline for forensic psychiatric evaluation of defendants raising the insanity defense. American Academy of Psychiatry and the Law.

Abstract: The insanity defense is a legal construct that excuses certain mentally ill defendants from legal responsibility for criminal behavior. This practice guideline has delineated the forensic psychiatric evaluation of defendants raising the insanity defense. The document describes acceptable forensic psychiatric practices. Where possible, standards of practice and ethical guidelines have been specified. And where appropriate, the practice guideline has emphasized the importance of analyzing the individual case, the jurisdictional case law and the state (or federal) statute. This practice guideline is limited by the evolving case law, statutory language and legal literature. The authors have emphasized the statutory language of current legal standards, as well as the state or federal courts' interpretation of those standards because the same statutory language has been interpreted differently in different jurisdictions. Similarly, this practice guideline has reviewed the state and federal trends that determine which diagnoses meet the criteria for mental disease or defect. These trends yield to jurisdictional court interpretations. Finally, the authors hope this practice guideline has begun the dialogue about formulating a forensic psychiatric opinion by surveying the various approaches used to analyze case data. The forensic psychiatrist's opinion in each case requires an understanding of the current jurisdictional legal standard and its application, as well as a thorough analysis of the individual case. The psychiatrist's analysis and opinion should be clearly stated in the forensic psychiatric report. It should be noted that the role of a psychiatric expert witness in the criminal justice system is predicated on the law's interest in individualizing the criteria of mitigation and exculpation. Forensic psychiatric analyses and formulations of opinions are, therefore, subject to change as the legal guidance changes.

We Do This At Common Law But That In Equity

Abstract: This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized. First, where common law and equity co-exist coherently, and where the historical labels of common law and equity remain useful terminology. Second, where common law and equity co-exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. And third, where common law and equity do not co-exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product. As a general illustration of what the third category comprises, and what fusion requires, one wide-ranging and practically very important area within the third category is focused on, namely monetary remedies for civil wrongs.

Reinventing the Double Helix: A Novel and Nonobvious Reconceptualization of the Biotechnology Patent

Abstract: The ownership of preexisting genes and other biochemicals raises important questions about the scope and purpose of patent law - what it is designed to accomplish and how biotechnology fits within that design More fundamentally, whether patent law is properly applied to products not independently created by a patent applicant implicates questions about the limits of intellectual property ownership, policy decisions about whether natural substances and processes should reside in the public or private sphere, choices about the value placed upon publicly available knowledge, and the microeconomic effects of limiting patents to some kinds of biotechnological innovations while excluding patents on others Are patents on naturally occurring phenomena, such as discovered DNA sequences, proteins, plasmids, and other biological chemicals, truly as uncontroversial and "simply necessary" as a matter of public policy as many legal commentators, the biotechnology industry, and the Patent and Trademark Office Director himself have argued? Are patents on naturally occurring substances of any kind authorized by the relevant legislation and case law? The answers are far from obvious, and their importance merits a more careful and detailed examination of the legal and policy underpinnings of the patenting of genes and other biotechnological innovations than has so far been undertaken This Article provides the first comprehensive examination of this issue The authors argue that the strong recent trend in the case law and literature toward viewing gene patents as uniformly desirable and legally proper rests upon a prevalent misinterpretation of a triad of key patent law concepts

When a Woman's Marital Status Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture

Abstract: This research guide collects and annotates books and journal articles about the common doctrine of coverture, which held that a wife had no legal standing because her being was completely incorporated into that of her husband. The doctrine was imported from England into Colonial America and has not yet disappeared from the law.