The Law-Finding Function of the American Jury

Article reprinted by permission of the Wisconsin Law Review. HARRINGTON Matthew P., "The Law-Finding Function of the American Jury", Copyright (1999) by The Board of Regents of the University of Wisconsin System.

Functionalism, co-operation, good faith, and the making of the "daily-preventive justice" in contract law theory and practice. A contribution to a rational understanding of good faith and to its future reseasonable developments. Evaluations from

The thoughts and observations contained in this paper were first presented in a preliminary form at the Staff Seminar that I gave at the University of Cape Town (UCT) - Department of Private Law, on Tuesday May 8 2012. The organizers generously offered me a free choice of subject. Such an offer always poses a problem to imaginative people like myself. I finally chose as my subject the role of good faith in contract law theory and practice and then entitled the Seminar “Good Faith & Contracts - Brothers in Arms”. The aim of the talk was to briefly describe what I see behind the doctrine of good faith (and, more broadly, behind the general course of the parties’ behavior before and after the conclusion of an agreement), to then explain the need of its protection and future reasonable developments by challenging the limitations of both traditional and current legal approaches to contract law theory and practice. By adopting a comparative modus investigandi, it emerged that especially in the area of contract law a new law-finding process is emerging in the European continent and it is leading to re-conceive the meta-national legislative interventions by challenging the limits of Hobbes’s Leviathan. As asserted, we ought to not take this process for granted because although there are many forms of social organization, contract is the most pervasive and the law of contract still is the most important vehicle to support and supplement private arrangements. However, the point of departure for theorizing about private law is based on experience. Consequently, despite the growing emphasis on the convergence of national legal systems in Europe, conducting research on private law theory and practice requires that imagination and creativity be matched with prudence. Proficiency has to be aligned with what we have learned from history.

Aplicação do exame da proporcionalidade diante da implantação de empreendimentos eólicos em áreas de preservação permanente

The setting up of wind power enterprises at Permanent Preservation Areas reflects the obvious conflict and necessary convergence between free market and energy security on the one hand, and the promotion of environmental quality on the other. From the perspective of energy sustainability, and in order to achieve development (in its complex meaning, which converges economic, social, environmental and cultural aspects), the harmonization between free market and an ecologically sustainable environment is required. This work aims to identify the link between the protection system of the Permanent Preservation Areas and the current constitutional order, by analyzing the implementation of wind power enterprises in these protected zones focusing on the proportionality aspects. A legal and purposeful research was developed, from a theoretical method, followed by collecting and analyzing both primary and secondary data. From these data, the law, the legal literature and judicial decisions were cross-examined, under the light of the Constitution and guided by the theory of proportionality and related development imperatives. In this context, the present study identified the link between the principles of the economic order, environment and energy law, finding their basis under the Federal Constitution and development. By reproducing this interrelationship and by means of post-crisis institutional reforms, the guiding objectives of the Brazilian electric sector began to corroborate the precepts of development, although issues regarding its sustainability still persist. The appraisal of proportionality indicates that the Permanent Preservation Areas protection system is insufficient to materialize the right to a healthy quality of life upon the implementation of wind projects at Permanent Preservation Areas, albeit seeking the harmonization between free market and environmental protection.

Aplicação do exame da proporcionalidade diante da implantação de empreendimentos eólicos em áreas de preservação permanente

The setting up of wind power enterprises at Permanent Preservation Areas reflects the obvious conflict and necessary convergence between free market and energy security on the one hand, and the promotion of environmental quality on the other. From the perspective of energy sustainability, and in order to achieve development (in its complex meaning, which converges economic, social, environmental and cultural aspects), the harmonization between free market and an ecologically sustainable environment is required. This work aims to identify the link between the protection system of the Permanent Preservation Areas and the current constitutional order, by analyzing the implementation of wind power enterprises in these protected zones focusing on the proportionality aspects. A legal and purposeful research was developed, from a theoretical method, followed by collecting and analyzing both primary and secondary data. From these data, the law, the legal literature and judicial decisions were cross-examined, under the light of the Constitution and guided by the theory of proportionality and related development imperatives. In this context, the present study identified the link between the principles of the economic order, environment and energy law, finding their basis under the Federal Constitution and development. By reproducing this interrelationship and by means of post-crisis institutional reforms, the guiding objectives of the Brazilian electric sector began to corroborate the precepts of development, although issues regarding its sustainability still persist. The appraisal of proportionality indicates that the Permanent Preservation Areas protection system is insufficient to materialize the right to a healthy quality of life upon the implementation of wind projects at Permanent Preservation Areas, albeit seeking the harmonization between free market and environmental protection.

Short comment: To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law

The title of this short (about 4500 words) intervention translates to "To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law". I engage with those criticising EU anti-discrimination law as yet another emanation of the EU's "neo-liberal" nature which fails to establish a viable social policy regime. I criticise this in two directions. First, I take issue with the theory that anti-discrimination law and policy has to be part of social policy. Actually, the field has a mission which differs from social policy, in that it addresses disadvantage resulting from othering, combating stereotypes as well as promoting accomodation of difference. Second, I show how the critique of judicialisation of policy is not unique to anti-discrimination law and policy. The so called turn to rights based employment law has been criticised under this mantra by those who fear that collective labour law mechanisms will become less prevalent. Further, those who have engaged with anti-discrimination law for a much longer time than those criticising it have also devised means to overcome the individualistic tendencies of rights adjudication. They have (partly successfully) argued in favour of establishing equality bodies and creating positive obligations. Thus, the critique neglects the field it takes on, and does not accept the fact that anti-discrimination law and policy must be considered a field in its own right instead of the servant of social law and policy.
Now, this is more a summary than an abstract - since I realise that not everyone reads German.

Way-Finding in the Built Environment

The Way-fi nding in the Built Environment project is a worldwide review identifying those way-fi nding systems and technologies that could be used to make it easier and safer for people with a sensory impairment (and in particular a vision impairment) to fi nd their way around buildings and large public spaces. The project makes recommendations on how these technologies and systems may be incorporated, by law or otherwise, into Australia’s building and construction practice. Way-fi nding aims to ensure that people with a sensory impairment know where they are in a building or an environment, where their desired location is, and how to get there from their present location. It is unlawful to discriminate against people with a disability under the Disability Discrimination Act 1992.

Elliptic curves, group law, and efficient computation

This thesis is about the derivation of the addition law on an arbitrary elliptic curve and efficiently adding points on this elliptic curve using the derived addition law. The outcomes of this research guarantee practical speedups in higher level operations which depend on point additions. In particular, the contributions immediately find applications in cryptology. Mastered by the 19th century mathematicians, the study of the theory of elliptic curves has been active for decades. Elliptic curves over finite fields made their way into public key cryptography in late 1980’s with independent proposals by Miller [Mil86] and Koblitz [Kob87]. Elliptic Curve Cryptography (ECC), following Miller’s and Koblitz’s proposals, employs the group of rational points on an elliptic curve in building discrete logarithm based public key cryptosystems. Starting from late 1990’s, the emergence of the ECC market has boosted the research in computational aspects of elliptic curves. This thesis falls into this same area of research where the main aim is to speed up the additions of rational points on an arbitrary elliptic curve (over a field of large characteristic). The outcomes of this work can be used to speed up applications which are based on elliptic curves, including cryptographic applications in ECC. The aforementioned goals of this thesis are achieved in five main steps. As the first step, this thesis brings together several algebraic tools in order to derive the unique group law of an elliptic curve. This step also includes an investigation of recent computer algebra packages relating to their capabilities. Although the group law is unique, its evaluation can be performed using abundant (in fact infinitely many) formulae. As the second step, this thesis progresses the finding of the best formulae for efficient addition of points. In the third step, the group law is stated explicitly by handling all possible summands. The fourth step presents the algorithms to be used for efficient point additions. In the fifth and final step, optimized software implementations of the proposed algorithms are presented in order to show that theoretical speedups of step four can be practically obtained. In each of the five steps, this thesis focuses on five forms of elliptic curves over finite fields of large characteristic. A list of these forms and their defining equations are given as follows: (a) Short Weierstrass form, y2 = x3 + ax + b, (b) Extended Jacobi quartic form, y2 = dx4 + 2ax2 + 1, (c) Twisted Hessian form, ax3 + y3 + 1 = dxy, (d) Twisted Edwards form, ax2 + y2 = 1 + dx2y2, (e) Twisted Jacobi intersection form, bs2 + c2 = 1, as2 + d2 = 1, These forms are the most promising candidates for efficient computations and thus considered in this work. Nevertheless, the methods employed in this thesis are capable of handling arbitrary elliptic curves. From a high level point of view, the following outcomes are achieved in this thesis. - Related literature results are brought together and further revisited. For most of the cases several missed formulae, algorithms, and efficient point representations are discovered. - Analogies are made among all studied forms. For instance, it is shown that two sets of affine addition formulae are sufficient to cover all possible affine inputs as long as the output is also an affine point in any of these forms. In the literature, many special cases, especially interactions with points at infinity were omitted from discussion. This thesis handles all of the possibilities. - Several new point doubling/addition formulae and algorithms are introduced, which are more efficient than the existing alternatives in the literature. Most notably, the speed of extended Jacobi quartic, twisted Edwards, and Jacobi intersection forms are improved. New unified addition formulae are proposed for short Weierstrass form. New coordinate systems are studied for the first time. - An optimized implementation is developed using a combination of generic x86-64 assembly instructions and the plain C language. The practical advantages of the proposed algorithms are supported by computer experiments. - All formulae, presented in the body of this thesis, are checked for correctness using computer algebra scripts together with details on register allocations.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Social influences on Chinese drivers : cultural context and traffic law enforcement

Reducing road crashes and associated trauma is a critical focus as the Decade of Action for Road Safety commences. China is one of many rapidly-motorizing nations to experience recent increases in private-vehicle ownership and an associated escalation in novice drivers. Unfortunately, however, China also experiences a high rate of death and injury from road crashes. Several key pieces of legislation have been introduced in recent decades in China to deal with these changes. While managing the legal aspects of road use is important, social influences on driver behaviour may offer additional avenues for promoting safe driving, particularly in a culture where such factors carry high importance. To date, there is limited research on the role of social influence factors on driver behaviour in China, yet we know that Chinese society is strongly based on social rules, customs, and relationships. There is reason to assume therefore, that road use and driving-related issues may also be strongly influenced by social relationships. One previous study that has investigated such issues highlighted the need to consider culturally-specific issues such as interpersonal networks and social hierarchy when examining driver behaviour in China (Xie & Parker, 2002). Those authors suggested that there are some concepts relating to Chinese driving culture that may not necessarily have been identified from research conducted in western contexts and that research conducted in China must be considered in light of such concepts. The current paper reports qualitative research conducted with Beijing drivers to investigate such social influence factors. Findings indicated that family members, friends, and driving instructors appear influential on driver behaviour and that some novice drivers seek additional assistance after obtaining their licence. The finding relating to the influence of driving instructors was not surprising, given the substantial number of new drivers in China. In Beijing, driving instruction is conducted off-road in purpose-specific driving facilities rather than on the road network. Once licensed, it is common for new drivers to have little or no experience driving in complex traffic situations. This learning situation is unlikely to provide all the skills necessary to successfully negotiate crowded city streets and assess the related risk associated with such driving. Therefore, it was not surprising to find that one reported strategy to assist new drivers was to employ the services of an ‘accompanying driver’ to provide ongoing driving instruction once licensed. In more highly motorised countries supervised practice is part of a graduated licensing system where it is compulsory for new drivers to be supervised by a more experienced driver for a requisite period of time before progressing to solo driving. However, as this system is not in place in China, it appears that some drivers seek out and pay for additional support once they commence on-road driving. Additionally, strategies to avoid detection and penalties for inappropriate road use were discussed, many of which involve the use of a third person. These findings indicate potential barriers to implementing effective traffic enforcement and highlight the importance of understanding culturally-specific social factors relating to driver behaviour.

Finding and matching communities in social networks using data mining

The rapid growth in the number of users using social networks and the information that a social network requires about their users make the traditional matching systems insufficiently adept at matching users within social networks. This paper introduces the use of clustering to form communities of users and, then, uses these communities to generate matches. Forming communities within a social network helps to reduce the number of users that the matching system needs to consider, and helps to overcome other problems from which social networks suffer, such as the absence of user activities' information about a new user. The proposed system has been evaluated on a dataset obtained from an online dating website. Empirical analysis shows that accuracy of the matching process is increased using the community information.

Assisting a suicide : potential succession law consequences

The recent criminal law decisions where people have been convicted of aiding suicide raise important legal and ethical issues in relation to whether euthanasia should be legalised. These cases also raise issues of great significance for succession lawyers. Where, as in cases such as Nielsen and Justins, the person convicted of aiding a suicide is a principal beneficiary under the will of the deceased, various legal consequences, such as: forfeiture of the interest under the will; liability for breach of fiduciary obligation; and/or a finding of undue influence, may follow which may result in loss of such benefit.

Vulnerability : an issue for law and policy in pandemic planning?

The 2009 H!Nl 'swine flu' pandemic was the first influenza pandemic of the twenty-first centmy. Unlike the first influenza pandemic of the twentieth century, the so-called 'Spanish flu' which killed millions of people worldwide, the 2009 pandemic was relatively mild. While the mildness of the 2009 pandemic meant that the 'Yorld was spared from the impact of a high-mortality event that would cause widespread social and economic disruption, the 2009 pandemic did provide an opportunity to road-test pandemic readiness. In other work we have assessed Australia's pandemic plans and emergency management legislation, finding that both provide flexible and adaptive forms of regulation that are capable of adapting to the scale and severity of a pandemic or other public health emergency. 1 In this chapter we consider whether pandemic planning adequately addresses the needs of vulnerable individuals and groups, both within countries and between them. Central to this is the question of whether vulnerability is itself a useful concept for both law and policy, and if so, the implications of expressly incorporating the concept of vulnerability into pandemic planning.

‘It’s about finding a way’ : children, sites of opportunity, and building everyday peace in Colombia

The multiple forms of violence associated with protracted conflict disproportionately affect young people. Literature on conflict-affected children often focuses on the need to provide stability and security through institutions such as schools but rarely considers how young people themselves see these sites as part of their everyday lives. The enduring, pervasive, and complex nature of Colombia’s conflict means many young Colombians face the challenges of poverty, persistent social exclusion, and violence. Such conditions are exacerbated in ‘informal’ barrio communities such as los Altos de Cazucá, just south of the capital Bogotá. Drawing on field research in this community, particularly through interviews conducted with young people aged 10 to 17 this article explores how young people themselves understand the roles of the local school and ngo in their personal conceptualisations of the violence in their everyday lives. The evidence indicates that children use spaces available to them opportunistically and that these actions can and should be read as contributing to local, everyday forms of peacebuilding. The ways in which institutional spaces are understood and used by young people as ‘sites of opportunity’ challenges the assumed illegitimacy of young people’s voices and experiences in these environments.

The first-year experience in law school: A new beginning?

The first-year experience at university is a "purgatorial zone". There is the shock of the new: navigating a new campus, choosing and enrolling in courses, locating classrooms, finding new friends and establishing new social networks, buying armloads of textbooks, making sense of subject outlines, balancing work and study, completing multiple assignments on time. But there are also the growing pains associated with intellectual development. Not only must first-year students take responsibility for their own learning; they must also accept that there are no "right" or "wrong" answers or "good" or "bad" positions, but judgements they must make and defend through analysis, reasoning and argument.

The First-Year Law Experience: A New Beginning

The first-year experience at university is a "purgatorial zone”. There is the shock of the new: navigating a new campus, choosing and enrolling in courses, locating classrooms, finding new friends and establishing new social networks, buying arm loads of textbooks, making sense of subject outlines, balancing work and study, completing multiple assignments on time. But there are also the growing pains associated with intellectual development. Not only must first-year students take responsibility for their own learning; they must also accept that there are no "right" or "wrong" answers or "good" or "bad" positions, but judgements they must make and defend through analysis, reasoning and argument: ... the student [must] shift from passivity to activity; [university] is no longer an environment in which professors have the sole responsibility to teach but, rather; one in which the student has an equal responsibility to learn. They [need] . .. to becom[e] critical thinkers who are, in the words of Richard Paul and Linda Elder, "self-directed, self-disciplined, self-monitored, and self-corrective".