Custom In The Courtroom, Law In The Village: Legal Transformations In Papua New Guinea

After more than twenty-five years on the legal landscape of Papua New Guinea, 'customary law' is ripe for reassessment, particularly as it appears to be an ideal mechanism with which the Papua New Guinean state can meet some of its obligations to a burgeoning body of international law. This article addresses the need to understand customary law in the context of its varying usage across different legal domains in an archetypally pluralistic state. In contrast to older approaches focusing on the problematic interface between an exogenous legal system and indigenous methods of dispute settlement, my concern is with the ways in which these distinct legal forms have fared in each other's company since independence in 1975. Case-studies from a village court and an urban national court demonstrate that village court magistrates and high court judges alike use custom and law as strategic sources of authority. While village courts take custom for granted and therefore must 'discover' law, high courts take law for granted and must 'discover' custom. These processes indicate that, rather than being hybridized as 'customary law', the distinctiveness of custom and law are often maintained in order for one to appear as a resource upon which the other can draw.     

Federal consistency and ocs oil and gas development: A review and assessment of the “directly affecting”; controversy

Abstract

Attempts by the federal government, notably the Department of the Interior, to accelerate development of hydrocarbon resources on the Outer Continental Shelf have resulted in litigation between coastal states and the federal government. A principal issue involved has been whether federal consistency provisions contained in the Coastal Zone Management Act apply to federal lease sale decisions. Language contained in this statute (Section 307(c)(l)) requires federal activities directly affecting the coastal zone to be conducted in a manner consistent, to the maximum extent practicable, with state coastal zone management programs.

This paper reviews the evolution of this controversy in intergovernmental relations since its inception, and describes various proposals which have been made to define the term “directly affecting.”; Events involved in OCS Lease Sales Nos. 48, 53, and 68, offshore California, are described to illustrate the varying state/federal perspectives on federal consistency requirements. This assessment concludes that voluntary consistency determinations by federal agencies would best promote harmonious state/federal relations in developing hydrocarbon resources on the Outer Continental Shelf.     

The offshore jurisdiction of the states of the United States and the provinces of Canada—A comparison

Abstract

The coastal state has jurisdiction over the resources located in the seas and seabed adjacent to its coast. In federal states the question has arisen as to whether the rights in those resources are to be held by the national government or by the subsidiary territorial governments. It has been the focus of political activity and court litigation in the United States and Canada. This paper reviews in detail the status of the offshore claims of the states of the United States and the provinces of Canada. In delimiting these boundaries two systems of law have become relevant—modern public international law and historic common law. Both systems of law have advantages and disadvantages for the courts and interested parties. While the United States has chosen a route that relies very heavily on modern public international law, the Canadian situation is less clear. Litigation now in progress may resolve this issue in Canada by court decree unless a political settlement is reached first. A recent agreement between the Federal Government of Canada and the Gov eminent of Nova Scotia which calls for joint management and revenue sharing may point the way toward such a settlement.     

Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention

This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process under the UNCLOS and the possibility of a successful claim.     

Childhood malignancies and decision making.

Failure to obtain "adequate" medical care for a child constitutes child neglect, which may be used as the basis for prosecution of parents, removal of the child from the home, or court-ordered medical treatment. "Adequate" care is usually construed as that which is given by a licensed physician, but, in case of dispute, courts almost never engage in choosing one medical approach over another. The principle that parents may not refuse medical care, however, is made very difficult when children have malignancies--the long-term nature of the treatment means that, if the child is left at home, court order or not, the parents may flee with their child. Removing the child from the home, however, adds that trauma to the ill child's burdens. Questions should be asked before making a request to a court to order a therapy which will prolong but not save a child's life if the parents would prefer to spare their child the side effects. Parents, however, may always refuse to permit their child to participate in research studies, no matter how promising. Adolescents are increasingly believed to be capable of medical decision making; most courts, however, would not allow an adolescent to refuse life-saving treatment.     

The use of auxiliary courts by the lek-forming White-bearded Manakin Manacus manacus (Aves, Pipridae)

The White-bearded Manakin is a passerine specially noted for elaborate courtship. Each resident male has a cleaned oval court delimited by saplings in leks. No study mentions the use of more than one court by a territorial male during the breeding season. We report the use of auxiliary courts by males in the lowland forest of southeastern Brazil and discuss its probable function in attracting females for mating. Additionally, we experimentally modified a male’s main courts, testing that auxiliary courts serve as alternative display places. Twelve males from four different leks were observed for 145 h. Six males used from one to four auxiliary courts located 1.0 to 8.1 m from their main courts. The males that also used auxiliary courts displayed more than males that used only the main court. Nevertheless, the proportion of female visits per display time indicates that males that used only the main court have greater efficiency in attracting potential mates. Individual males responded differently to the experimental modification of their main courts, but one male avoided the modified court. The use of auxiliary courts may be a strategy adopted mainly by peripheral males to attract females that visit more successful males with central territories on the lek. In the short term, auxiliary courts function as optional display places in cases of loss of the main court. In the long term, the use of auxiliary courts may be involved in the temporal persistence of lek areas.     

Should Consensus Be ‘The Commission Method’ in the US? The Perspective of the Federal Advisory Committee Act,Regulations, and Case Law

This paper examines the drive for consensus from the perspective of the good government framework for federal advisory commissions in the United States. Specifically, the paper examines the Federal Advisory Committee Act (FACA)--the statute, its regulations, and case law. It shows that the FACA was intended to be an antidote to abuses in consensus-making processes, including the failure to fully include competing views on commissions. The index of suspicion in the FACA scheme rises when a group work product--including a consensus report--is to be the basis of recommendations to federal officials. Once FACA's requirements regarding committee composition are satisfied, the index of suspicion drops and FACA is indifferent to consensus-making; but the conditions for informed, meaningful participation apply to members who dissent from, as well as those who participate in, consensus. In negotiated rulemaking, the push for consensus and closure creates unacceptable tension with the good government goals of openness and accountability. Proponents of consensus-only bioethics commissions can learn from FACA-related legislative, agency, and judicial insights that consensus-seeking is not always desired by government officials; is rarely cost free; and that diversity and dissent enhance openness, accountability, and fairness. The burden of proof is therefore on proponents of a consensus-only standard for bioethics commissions to demonstrate that a drive for consensus furthers sound decision-making by government officials more than it sets back openness and accountability to a diverse public.     

The effect of Tropical Cyclone Larry on tooth‐billed bowerbird Scenopoeetes dentirostris court attendance and decoration

Abstract The effect of Severe Tropical Cyclone Larry on tooth‐billed bowerbird court attendance and decoration was assessed for 32 courts located on the southern Atherton Tablelands. Numbers of active courts and the number of leaves on courts were compared with the two previous court attendance seasons. Compared with the 2004/2005 and 2005/2006 seasons, when court attendance was well established by mid‐September, tooth‐billed bowerbirds commenced court attendance late in the 2006/2007 season that followed Cyclone Larry. There were no courts active in mid‐September, and few were active in the first week of October. Twenty‐five percent fewer courts were active over the course of the 2006/2007 season than in the 2005/2006 season. For most of the 2006/2007 season, the average number of leaves on courts was significantly lower than in the previous two seasons. The 2006/2007 tooth‐billed bowerbird court attendance season appears to have been affected by direct disturbance to court sites and by the fruit shortage that followed the cyclone.     

Lessons for health care rationing from the case of child B.

More details have emerged about the child B leukaemia case with the publication of the All England Law Report on the Appeal Court decision. At the time the view was widely held that the controversy might have been avoided if the responsible health authority had consulted the public. The law report reveals, however, that the courts adopted a moral language widely at variance with that of the patient''s doctor. The courts were concerned to support a utilitarian decision procedure based on calculations of the greatest overall good; the doctor was concerned with the best interests of a sick child. The doctor-patient relationship may be damaged when public consideration transforms the issue in this way. Also, the Appeal Court supported a decision which claimed to have "weighed" opposing evaluations, but it excused the health authority from describing how that weighing took place. One of the main criticisms of the utilitarian approach, however, is that weighing of this type is extremely difficult to justify. By its ruling the court has made legal challenge on the grounds of inadequate consultation virtually impossible to substantiate.     

The legal investigation of a decision not to operate on an infant with Down's syndrome and a duodenal atresia: a report from the Netherlands

It is well-known that in the Netherlands it has for several years been possible to carry out voluntary euthanasia quite openly, provided certain strict conditions are fulfilled. This situation has arisen because courts in the Netherlands have decided that doctors who end the lives of their patients under these conditions are in a "conflict of duties" situation, and therefore should not be convicted of any criminal offence. It has, however, not been known what view a Netherlands court might take about life and death decisions concerning patients who are not capable of giving consent -- for example, infants. This report briefly outlines my experience in the case of an infant with Down's syndrome and duodenal atresia -- a blockage of the digestive system that must be operated upon if the infant is to survive. A decision was taken not to operate, and this decision resulted in the Netherlands courts considering whether criminal proceedings were justified.     

Review: domestic animal forensic genetics – biological evidence,genetic markers,analytical approaches and challenges

This review highlights the importance of domestic animal genetic evidence sources, genetic testing, markers and analytical approaches as well as the challenges this field is facing in view of the de facto ‘gold standard’ human DNA identification. Because of the genetic similarity between humans and domestic animals, genetic analysis of domestic animal hair, saliva, urine, blood and other biological material has generated vital investigative leads that have been admitted into a variety of court proceedings, including criminal and civil litigation. Information on validated short tandem repeat, single nucleotide polymorphism and mitochondrial DNA markers and public access to genetic databases for forensic DNA analysis is becoming readily available. Although the fundamental aspects of animal forensic genetic testing may be reliable and acceptable, animal forensic testing still lacks the standardized testing protocols that human genetic profiling requires, probably because of the absence of monetary support from government agencies and the difficulty in promoting cooperation among competing laboratories. Moreover, there is a lack in consensus about how to best present the results and expert opinion to comply with court standards and bear judicial scrutiny. This has been the single most persistent challenge ever since the earliest use of domestic animal forensic genetic testing in a criminal case in the mid‐1990s. Crime laboratory accreditation ensures that genetic test results have the courts’ confidence. Because accreditation requires significant commitments of effort, time and resources, the vast majority of animal forensic genetic laboratories are not accredited nor are their analysts certified forensic examiners. The relevance of domestic animal forensic genetics in the criminal justice system is undeniable. However, further improvements are needed in a wide range of supporting resources, including standardized quality assurance and control protocols for sample handling, evidence testing, statistical analysis and reporting that meet the rules of scientific acceptance, reliability and human forensic identification standards.     

Federal communication about obesity in the Dietary Guidelines and checkoff programs

The new Dietary Guidelines for Americans focus on obesity prevention. They recommend increased consumption of whole grains, fruits, vegetables, fish, and low-fat dairy products, within a balanced diet whose total calories have been moderately reduced. Meanwhile, other well-known and well-funded federally sponsored consumer communications promote increased total consumption of beef, pork, and dairy products, including energy dense foods such as bacon cheeseburgers, barbecue pork ribs, pizza, and butter. These latter communications are sponsored by the federal government's commodity promotion programs, known as "checkoff" programs. The programs are established by Congress, approved by a majority of the commodity's producers, managed jointly by a producer board and the U.S. Department of Agriculture, and funded through a tax on the producers. The federal government enforces the collection of more than 600 million US dollars annually in mandatory assessments, approves the advertising and marketing programs, and defends checkoff communication in court as the federal government's own message-in legal jargon, as its own "government speech." Federal support for promoting fruits and vegetables is small by comparison. The checkoff programs recently have become more clearly identified as federal programs. After a recent decision by the U.S. Supreme Court upholding the constitutionality of the checkoff programs, calls for consistency with the Dietary Guidelines may get louder. The current inconsistencies in federal communication undermine the effectiveness of the Dietary Guidelines as an antidote to the shortcomings of the private sector market for information about weight and obesity.     

Better RED than dead: paying the people for environmental services in Amazonia

The introduction of payments for environmental services (PES) offers an opportunity for traditional and indigenous populations to be compensated for contributing to carbon sequestration in meeting the challenge of ameliorating global warming. As one mechanism among several for promoting biodiversity conservation and sustainable development, pro-poor PES initiatives could eventually be incorporated into an international post-Koyoto framework to encourage reduced emissions from deforestation. Brazil's Proambiente PES scheme for small farmers in Amazonia has enjoyed some limited success, but it has fallen short of expectations. Its performance has been undermined by the lack of a national legal framework, limited funding, reduced implementation capacity, poor cross-sector collaboration and incompatibility with existing regional development policies. These challenges are being addressed by the federal government in cooperation with civil society with a view to scaling up Proambiente into a national programme.     

Diet shapes cold-water corals bacterial communities

Different cold-water coral (CWC) species harbour distinct microbial communities and the community composition is thought to be linked to the ecological strategies of the host. Here we test whether diet shapes the composition of bacterial communities associated with CWC. We compared the microbiomes of two common CWC species in aquaria, Lophelia pertusa and Madrepora oculata, when they were either starved, or fed respectively with a carnivorous diet, two different herbivorous diets, or a mix of the 3. We targeted both the standing stock (16S rDNA) and the active fraction (16S rRNA) of the bacterial communities and showed that in both species, the corals' microbiome was specific to the given diet. A part of the microbiome remained, however, species-specific, which indicates that the microbiome's plasticity is framed by the identity of the host. In addition, the storage lipid content of the coral tissue showed that different diets had different effects on the corals' metabolisms. The combined results suggest that L. pertusa may be preying preferentially on zooplankton while M. oculata may in addition use phytoplankton and detritus. The results cast a new light on coral microbiomes as they indicate that a portion of the CWC's bacterial community could represent a food influenced microbiome.     

Legal regimes for seabed hard mineral mining: Evolution at the federal and state levels

Abstract

During the last decade U.S. government and industry interest in seabed hard minerals has shifted from areas beyond national jurisdiction to those within national jurisdiction. A variety of factors—technical, economic, political, legal—are behind this trend. This article focuses on the legal aspects of federal and state efforts to encourage and regulate seabed minerals exploration activities, prospective avoidance of conflicts between seabed mining and other ocean uses, federal‐state relations in seabed minerals development, and the special situation of mineral deposits spanning the federal‐state boundary offshore.     

Bowers on the savanna: display courts and mate choice in a lekking widowbird

Individual display courts, constructed by lekking male Jackson'swidowbirds, Euplectes jacksoni, were studied with respect tofemale mate choice. The court is a shaped tuft of grass, surroundedby a circular track on which displays and mating are performed.At the base of the tuft there are two cup-shaped recesses. Femalessit in front of, and often pluck at, one ofthese recesses whilemales display at the opposite side for about 1 min before theyapproach and attempt to copulate. The vast majority of femalesvisiting courts with experimentally destroyed or impaired recessesstayed shorter than the average time of male approach, whereasvisits to improved courts lasted longer than visits to intactcourts. All recorded copulations occurred at intact or improvedcourts. The display court is a weak predictor of male matingsuccess compared to other choice cues such as display rate andtail length, but females may require the court quality to exceeda certain stimulus threshold to accept the male. Court qualitycorrelates positively with male lek attendance and tail length.This paper discusses the implications of the results for sexualselection and considers the possibility that display courtsare ‘external sexual ornaments.’ From comparativedata on breeding behavior in related species, the display courtand its associated behaviors are suggested to originate frommale nest-initiation and female nest-inspection within an ancestralstate of resource-defense polygyny.     

Indian Boarding Schools And Ethnic Identity: An Example From The Southern Plains Tribes Of Oklahoma

Abstract

In the late 1800s, boarding schools sponsored by the United States government were created for the education and socialization of American Indian youth. These institutions gradually and purposefully pursued a policy of total assimilation of American Indians into the mainstream of society. The boarding schools failed in their ultimate goal to assimilate Indians. Surprisingly, however, they did attain limited acceptance among many Oklahoma Indians. The segregationist policies of the boarding schools are interpreted as having inadvertently perpetuated the formation of an Indian identity. Frequent visiting by family, segregation of Indian from non-Indian students, and symbolic association of the boarding schools with federal government obligations are identified as factors which contributed to the maintenance of this identity.     

Adelaide Bartlett and the Pimlico mystery.

In 1886 Adelaide Bartlett stood trial at the Old Bailey for the murder of her husband, Thomas Edwin Bartlett. The court witnessed sensational evidence and the case left questions which remain unanswered.     

What should the standard of proof be in scientific misconduct proceedings relating to public health service-funded research?

This article discusses the nature and purposes behind the three standards of proof commonly used in the United States. It summarizes the analytical constructs or standards of review courts commonly use to determine the constitutional validity of standards of proof (as well as other procedural protections) in physician disciplinary proceedings. It applies these constructs to the context of scientific misconduct and an illustrative case, and shows that sound policy and morals as well as procedural due process and equal protection provisions of the United States and some state constitutions require the use of the clear and convincing evidence standard of proof in scientific misconduct proceedings. That standard is necessary to protect scientists from misuse of scientific misconduct charges and proceedings, entailing, as they do, vast discretion in bureaucratic officials as well as staggering costs. The imminent rule making proceedings at the federal level will provide a special opportunity to right a wrong that long has been long visited upon academic scientists throughout the United States.     

And the helix may set you free

The first application of DNA forensics evidence was carried out by Dr. Alec Jefferies in 1983, in a British court case that sought to identify the relationship between an emigrant and her son. Since then, genotyping technology (also known as DNA fingerprinting and genetic profiling) has been developed and applied to identifying individuals for a wide variety of purposes including exonerating convicts. Faulty forensic evidence is a common cause of wrongful convictions. And once convicted, access to the forensic evidence remains a clear barrier to possible exoneration. In fact, it is DNA exoneration that is driving state legislators to address some of the apparent legislative flaws that govern forensic evidence testing in the U.S.