中国法律早期现代化的保守性价值评析

对如何评价中国晚清修律中保守性价值问题进行讨论。对晚清时期中国社会的法律价值重新评价,与西方国家法律现代化进行比较,考虑近代中国国家和民族的政治功利性,考虑民族心理,考虑当时的历史背景、学术水准以及东方国家现代化的共同规律,认为中国早期法律现代化中包含某些保守性价值是具有历史合理性的存在。     

Legal education in Nigeria: an evaluation of the recruitment practice for the teaching of law as a career

This article makes a critical assessment of legal education in Nigeria, focusing on the standard of hiring for the teaching of law as a career in the country. Legal academics are hired based upon an accreditation standard that requires a vocational qualification determined through a call to the Nigerian Bar. The article argues that making a vocational qualification a criterion for academic appointment – apart from other achievements demonstrated through higher law degrees – inhibits innovation in teaching and learning and needs to change. This change is premised on three reasons: the growth of interdisciplinary legal scholarship; the trend in the legal marketplace; and the correlation between a law faculty and a department of religion. And it concludes with some proposals to think about for a more scholarly approach towards the teaching of law within Nigerian academia. The aim of this article is to inform the essential dichotomy between legal scholarship and practice, and the transnational aspirations of legal academics, for those involved in the development of law teaching and study, as well as those concerned with educational policy and administration around the world.     

法治30年的回顾、反思与展望——第一届齐鲁法学论坛述评

与30年的改革开放同步,中国法治经历了一个理论不断革新、制度不断完善的发展过程。第一届齐鲁法学论坛以"回顾、反思、展望"为主线,回顾和总结了30年来的法治历程与经验,反思和展望今后的发展道路。论坛研讨了刑法学、行政法学、民商法学、司法制度、法学研究、学科建设、法学教育等主题,蕴含着丰富的思想含量。今后我们的法学研究还要进一步拓宽视域、提升层次,使之具有国际视野,积极融入全球法学发展进程之中。     

Now You See Them, Now You Don't: The Legal Field and Newspaper Desegregation of Sex-Segregated Help Wanted Ads 1965–75

We analyze the timing and extent to which major newspapers in the United States ceased publishing sex-segregated help wanted columns. We situate our study within a specific scholarly literature in organizational sociology and the sociology of law interested in patterns of organizational compliance with U.S. employment law. More specifically, this article is conceptually and theoretically organized around the concept of the "legal field," defined as the dynamic and emergent interactions among formal law and legal rules, legal officials, self-interested organizations, and the broader political and cultural environment. Content analysis of major U.S. newspapers between 1966 and 1975 indicates that, for nearly five years (1966–70), newspapers collectively refused to desegregate their help wanted columns, despite clear legal rules prohibiting their use. Then, in a comparatively condensed period between 1971 and 1973, virtually all newspapers abruptly abandoned the traditional practice of sorting job ads explicitly by sex.     

China’s rule of law in the globalization era

Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law. In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession will penetrate much more into the whole Chinese law and its operation.     

文化产业发展中的反垄断法制建设新问题

文化体制改革深入把文化产业市场化发展的有关问题推到了法学研究的前沿,特别是对与市场经济紧密联系的竞争法提出了新的课题。文化产业有区别于其他一般经济领域的特殊性,西方国家的立法经验和法律实践表明文化产业的市场化经营必须依靠竞争法调整和保障。发展文化产业给反垄断法制建设提出了新要求,正在制定中的我国反垄断法应就与文化产业发展有关的竞争问题作出相应的规定,为文化产业的市场化改革和发展提供法律保障。     

中国经济法的改革与创新——一种制度变迁的视角

经济法是我国改革开放的产物。中国经济法的改革与创新,是在改革开放、社会转轨的大背景下完成的。经济法的发展一直是＂摸着石头过河＂。一方面,＂渐进式改革＂注定了经济法在发展初期以国家本位为主导、以经济行政法规、法律＂双轨制＂立法为特征,在稳定的前提下,以较小的社会成本获得了中国经济的高速增长（政治的科斯定理）。早期我国经济法属于典型的＂由上而下＂的＂强制性制度变迁＂。随着经济改革的不断推进、意识形态的转变、以及国内外法制环境的变迁,特别是中国加入WTO,经济法完成了从国家干预法到国家协调法、从国家本位到社会本位、从国内法到国际转轨、从实体法到程序法、从硬法到软法、从公法到公私融合的六大转变。＂周虽旧邦,其命维新。＂新时代下,＂以人为本＂,以科学发展观为理念,经济法正迎接新的发展契机。     

The ‘illegal sentences which magistrates were daily passing’: The Backstory to Governor Richard Bourke's 1832 Punishment and Summary Jurisdiction Act in Convict New South Wales

Recent literature has recast the history of the British empire as a vast project of intervention in and reordering of colonial legal administrations. Closer inspection of local moments of legal reform, however, reveals substantial complications and contradictions in that project. This article re-considers Governor Richard Bourke's Punishment and Summary Jurisdiction Act 1832, the most celebrated legal intervention in the history of the ‘convict colony’ of New South Wales by a governor whose liberalism and humanitarianism epitomized the spirit of imperial reform agendas. The nature and objectives of Bourke's so-called Fifty Lashes Act are widely misunderstood. This article shows that while Bourke positioned his Act as a matter of legal urgency, its core aim was to render convict punishment more useful and economical. Moreover, Bourke's reforms were less innovative than is commonly assumed, being mostly required to re-assert and refine existing law that was being disregarded. Nevertheless, Bourke's reforms did address long-contested legal issues surrounding the summary jurisdiction of colonial magistrates and the local application of English transportation law. The backstory to the Act reveals the remarkably complicated and truly disordered state of the law in New South Wales, but this article also shows how the implementation of legal reform was seasoned with confusion and caution.     

卷首语

七月流火，夏日炎炎，似乎也想为风头正劲的司法改革试点工作添上一把柴禾，好让每个法律人都憧憬着的法治梦燃烧得更猛烈些。7月31日，上海市司法改革试点推进小组第二次会议审议通过了两个实施方案，此前已备受瞩目的上海司法改革先行试点由此全面启动，一时间众说纷纭。     

Feminist lawyering,violence against women,and the politics of law reform in India: An interview with Flavia Agnes

The history of the women’s movement’s relationship to law in India cannot be written without acknowledging the pioneering work of activist, advocate, and scholar Flavia Agnes. Her own life’s journey, engagement with the movement, involvement in women’s rights litigation, feminist jurisprudential scholarship, and outreach work through Majlis (the organisation she co-founded) offer key insights into the kind of movement-based legal pedagogy, awareness, and training that the women’s movement has fostered in India. Flavia’s activism and scholarship over the last three decades have opened up sophisticated critiques of rape law and family law reform in India that have become foundational to the field of what can be called Indian feminist jurisprudence. This interview offers insights into the autobiographical, the feminist, and the scholarly convergences in Flavia’s thinking and writing. She speaks with candour and conviction and introduces ways of thinking about feminist lawyering, violence against women, and the politics of law reform in India that are historically and theoretically grounded in an ethics of self-reflexivity and quotidian wisdom that the insulated nature of clinical legal education in India has much to learn from.

     

法律制度的需求层次、博弈及路径分析

以制度经济学的基本理论研究法律的制度需求命题。法律的供给与需求构成了法律规范运用于社会的两极 ,是实现法律制度变迁的前提。以制度的成本和收益为坐标系 ,探讨法律制度需求的多层次性、实证的博弈状态、满足路径以及相关原则 ,为法律制度的构建提供完整的现实图景和参照依据     

From the Field to the Courthouse: Should Social Science Research Be Privileged?

Social scientists need clarification about the extent to which the confidential aspects of their research are protected from compulsory disclosure in legal proceedings, and the extent to which they ought to be. Investigating the nature of social science research with an emphasis on researcher-participant relationships in ethnographic practice, I conclude that a qualified privilege would confer three major benefits on social science researchers: confidence that the government will not unnecessarily interfere with research, facilitation of improved researcher-participant relationships, and increased accuracy, thoroughness, and reliability of research data. I also discuss the development of privilege and confidentiality issues in practical research contexts through an examination of two criminal cases in which social science researchers refused to divulge the confidential information obtained in the course of research. Finally, I discuss the possible formulations of a scholarly research privilege. This is especially important because courts have cast social scientists as members of the larger community of academic or scholarly researchers with respect to these issues. Potential sources of protection include state journalist protection laws, federal common law, and federal statutory law. Evaluation of these sources and the case law to which they correspond suggests that developing common law privileges in state and federal jurisprudence is the most promising means of affording the confidential aspects of social science research legal protection. As researchers continue to press privilege     

Abortion and legal policy

This paper reviews four legal policies in abortion from a critical theory of law perspective. Since the Comstock era, abortion policy has undergone radical shifts from criminalization in the last quarter of the nineteenth century to decriminalization in the late 1960s, followed by legalization and medical control over the last decade. Yet, until recently, little scholarly attention has been given to the social and political implications of these various policy shifts (almost all studies focus on the current legal phase only) often in isolation from other social and political realities. In this paper we draw on historical, demographic, participant-observation, interview, and documentary and legal materials to analyze the transformations of legal control structures in abortion. This shows both the creation of abortion law, which is imbedded in structures of sexual domination, and the contradictions in abortion law, which express antagonisms in civil society as well as promote alliances within ruling groups. The abortion case further clarifies the failure of legality to transcend existing gender inequalities, thereby contributing to further erosion of welfare rights for poor women and their children.     

A legal perspective on university technology transfer

In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy and management. Throughout, we propose critical questions for future investigation, which serve to form a cross-disciplinary research agenda that can contribute fresh insights to scholarly and policy discussions related to the role of universities in economic and social development.     

程树德《九朝律考》补遗一则——南齐“永明定律”考

"永明定律"是南齐时重要的修律活动,反映出当时特定时代背景下儒法并用的政治取向和承前启后的律学成就。由于参议人员复杂,加之当时政局纷扰,外事不宁,故此次定律活动的成果——"永明律"最终并没有公布施行。然而,虽未能修成新律,却又非无果而终,其律条文本与律学成果为后世所继承,成为后代修律和习律的重要参考文献,颇有助益于中古法史之演进。所缺憾者,此次修律多为史家忽视,乃至中古法史考据典范如程树德《九朝律考》者亦未提及。故有必要详加考证,以补缺略。     

Project Overview and Emerging Themes

The law has traditionally been, and will remain, a fundamental tool for addressing health care reform in the United States. With this premise in mind, the "Legal Solutions in Health Reform" project was initiated. The project overview provides a broad understanding of the purpose and layout of the project; the formulation and definition of key legal issues; a brief review of each of the topics covered in the project; a survey of current health statistics in the United States; a discussion of the role of the federal versus state roles in health reform; a review of agencies and committees with jurisdiction over health reform issues; and a survey of means of enforcing health reform efforts.     

私有财产权与法律改革--1978-2003中国法律改革史考察

中国1978年至2003年的法律改革是围绕着确立和保护私有财产权来进行的.私法领域的改革确立了私法财产权,公法领域的改革确立了公法财产权.私法财产权和公法财产权的结合构成了完整意义上的私有财产权制度.2004年通过的宪法第22条修正案同时规定了私法财产权和公法财产权,是对中国25年法律改革的概括和总结.     

Efficient compensation for employees' inventions

We analyze a legal reform concerning employees' inventions in Germany. Using a simple principal-agent model, we derive a unique efficient payment scheme: a bonus which is contingent on the project value. We demonstrate that the old German law creates inefficient incentives even if litigation cost is zero. However, the new law (concerning university employees) and the pending reform proposal (concerning other employees) also fail to implement first-best incentives. With suboptimal incentives to spend effort on inventions, the government's goal, an increase in the number of patents, is likely to be missed. A part of this research was done while I enjoyed the hospitality of the University of California in Santa Barbara (Economics Department) and Berkeley (Law School). Financial aid by the Thyssen Stiftung is gratefully acknowledged. classification K 12 . J 33 . C 72     

全球化背景下中国法学教育面临的挑战

全球化正在深刻地影响各国法学教育,提出了法学教育改革的新课题。如何在全球化背景下合理地定位法学教育发展的功能,如何通过法学教育改革推动法治的发展是值得深入思考的问题。本文通过分析全球化背景下法学院功能的转变、挑战与未来发展趋势,对法学教育改革的政策选择提出建议。