When coroners care too much: Therapeutic jurisprudence and suicide findings

In common law countries such as England and Australia, violent and otherwise unnatural deaths are investigated by coroners who make findings as to the “manner of death”. This includes determining whether the deceased person intentionally caused their own death. Previous research (Tait and Carpenter 2013a, 2013b, 2014) has suggested that coroners are reluctant to reach such determinations, citing the stigma of suicide and a need for sensitivity to grieving and traumatized families. Based on interviews with both English and Australian coroners, this paper explores whether an ‘ethic of care’ evident in English and Australian coronial suicide determinations, can be understood as an application of the ‘practices and techniques’ of therapeutic jurisprudence. Based on the ways in which coroners position the law as a potential therapeutic agent, we investigate how they understand their role and position as legal actors, and the effects of their decision making in the context of suspected suicides.

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

Response to: Electronic health records and healthcare identifiers : legislation discussion paper

Public submission # 029 to a Australian federal parliamentary committee considering proposed legislative changes to the Commonwealth's Healthcare Identifiers Act 2010 and the Personally Controlled Electronic Health Records Act 2012.

Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Eastern twists on Western concepts: Equality jurisprudence and sexual harassment in Japan

A rich source of Japanese jurisprudence on sexual equality underlies Japan's emerging law against sexual harassment. With no law specifically outlawing sexual harassment, academics and the courts have invoked the principle of sexual equality to support their conclusion that Japanese law carries an implicit prohibition against acts of sexual harassment. In developing a legal case against sexual harassment, Japanese courts and academic commentators have introduced novel constructions of equality. The key innovations include relational equality, inherent equality and quantifiable equality. In presenting some of these Japanese contributions to equality jurisprudence, the hope is that feminist discourse on equality can take place in a broader context-a context that does not ignore the Eastern cultural experience.

Evaluation of the Red Light Camera Program and the Owner Onus Legislation

Red light cameras were introduced in Victoria in August 1983, with the intention of reducing the number of accidents that result from motorists disobeying red traffic signals at signalised intersections. Accident data from 46 treated and 46 control sites from 1981 to 1986 were analysed. The analysis indicated that red light camera use resulted in a reduction in the incidence of right angle accidents, and in the number of accident casualties. Legislation was introduced in March 1986 to place the onus for red light camera offences onto the vehicle owner. This legislation was intended to improve Police efficiency and therefore increase the number of red light cameras in operation. Data supplied by the Police indicated that these aims have beneficial road safety effects.

Legislation Concerning Reporting of Child Sexual Abuse and Child Trafficking in India: A Closer Look

The increasing rate of child sexual abuse and child trafficking has become a serious concern for national and international policy makers. Because these acts are criminal, result in serious harms to the child, and occur in closed scenarios where the situation is concealed, it is very important for people who become aware of the acts to report the incidents to the appropriate authority. Reporting of incidents could help provide justice to the victim and penalize the perpetrators. In addition, it would help us to understand the nature and magnitude of the problem. The objective of this chapter is first to review the Indian legislation concerning mandatory reporting of child abuse and neglect, and second to consider the potential for mandatory reporting of two categories of child maltreatment in particular in the Indian context: sexual abuse and child trafficking.