The feasibility and utility of pretrial instruction in the substantive law

Jurors are traditionally instructed in the governing law after trial, just prior to deliberation. Several legal scholars have proposed that instructing jurorsprior to trial would better equip them to evaluate the evidence and integrate it with the law. The most controversial aspect of this position is preinstruction in thesubstantive law. Critics warn that substantive preinstruction may impair jurors' performance and that it poses unreasonable administrative problems. This research surveys the opinions of California Superior Court judges on the advantages and disadvantages of substantive preinstruction to understand the reasons that judges either do or do not preinstruct on substantive issues. The most important advantage to emerge was the potential for a substantive precharge to improve jurors' integration of facts and law. The most critical disadvantages were administrative ones: The judge does not know before trial what substantive instructions are appropriate, and the procedure may cause burdensome delays.     

Dan ?t’astny: The Economics of Economics

The Economics of Economics (2010) by Dan ?t??astny extends the economic approach of public choice and law and economics to see how economists behave so as to improve their well being in the world of uncertainty, scarcity and institutions. According to ?t??astny, economists have been adjusting their behavior to the changing institutional environment and, consequently, ended up policy irrelevant. The book review provides an assessment of the model ?t??astny employs. On the one hand, ?t??astny offers a looking glass that helps seeing the decision making process of an economist from a price theory perspective. I suggest, on the other hand, that the model would be more accurate had it not considered preferences constant. In fact, the evolution of economists?? preferences and the changing sense of praiseworthiness is what the model should try to explain.     

Influence of storage on larval length and age determination of the forensically important blow fly Lucilia sericata (Diptera: Calliphoridae)

One of the main tasks in forensic entomology is the determination of the minimum post-mortem interval (PMI_min) based on the age of the juvenile insects feeding and developing on the dead body. An important task is to store the evidence appropriately so that the evaluation and expert report can be used in court. However, existing recommendations can be contradictory or lacking scientific validation, e.g. by proposing various preservation liquids without knowing whether and to what extent the period of storage in such a liquid has an effect on the length of the preserved larvae. Storage time can be an issue since, due to technical and procedural circumstances, killed larvae may be stored for hours, days, weeks or even longer prior length measurement. A changed body length would have consequences for the entomological report, as the age of the larvae is usually derived from their length.This study investigates the effect of four differently concentrated ethanol solutions (70%, 80%, 90% and 96%) during a storage period of up to 196 days on the body length of stored larvae of the forensically important blow fly species L. sericata (Diptera: Calliphoridae). Larvae of different ages (24 h, 48 h and 72 h after hatching) were killed by immersion in hot, non-boiling water (≥80 °C) for at least 30 s. Their lengths were measured immediately. Subsequently samples were stored in ethanol of appropriate concentration at room temperature (approx. 22 °C). Further length measurements were made at 16 different storage intervals between 1 and 196 days.Many specimens showed a length decrease for most storage conditions and all larval ages. However, there was a tendency for 48 h- and 72 h-old larvae to increase in length after the first days of storage of up to 1.1 mm which may lead to an erroneous overestimation of the PMI_min using this kind of specimens. All changes in length within each cohort over total time were in the range of +7% to −9.1%. Significant differences in length changes within the first days of storage were found mainly in larvae stored in 70%- and 80%-ethanol, but larvae stored in 90%- and 96%-ethanol showed first significant differences on day 56 at the earliest.Our results lead to the recommendation that the measurements of fly larvae samples should be taken immediately after killing and before storage to avoid any effects. Ethanol ≥90% should be used for storage.     

Sir/St. Thomas More on the US Constitution: ‘More Perfect’ is not Utopian

Sir Thomas More was a politician, statesman, visionary humanist, and a friend of Erasmus, Colet, and Henry VIII. His most famous literary work is Utopia, a word coined based on the Greek for ‘no place’. Its influence has been enormous, inspiring social thinkers as diverse as Rousseau and B. F. Skinner. Using the principles More seemed to advocate, this article addresses the question: ‘What would he have thought of the Constitution of the United States had he lived to read it and experience life under its aegis?’ Much of what the Americans have done he would appreciate, much he would deplore. He would appreciate the federal nature of government, the elective nature of the legislature, and the freedom granted to citizens. He would have deplored slavery based on race and applauded the 13th Amendment. He would have looked askance at the role of the president and the necessity for a military. In sum, if we can believe that what he wrote in Utopia reflects his attitudes correctly, Thomas More’s would be a mixed verdict on American republicanism.     

How to deal with resale price maintenance: What can we learn from empirical results?

The US Supreme Court’s overruling of the pre-existing per se illegality of resale price maintenance and the recommendation of a rule of reason approach in the Leegin decision (Leegin Creative Leather Products, Inc. vs. PSKS, Inc., 2007), raise the question whether other jurisdictions should follow this approach and what future assessments of resale price maintenance cases should look like. Policy decisions have to rely on the importance of various theories concerning welfare effects of resale price maintenance practices, which must be supported by empirical studies. The paper focuses on empirically confirmed theoretical arguments for the analysis and discussion of existing assessment proposals. Furthermore, the paper derives a new recommended assessment procedure for resale price maintenance from a special point of view by combining empirical results with the decision-theoretic approach of optimal sequential investigation rules.     

非WTO法在WTO争端解决中的适用

WTO专家组和上诉机构具有充分的理由适用非WTO法,DSB解决争端的实践表明非WTO法在WTO争端解决程序中具有广泛的效力。非WTO法不仅可以使专家组中止管辖权,甚至在更多的情况下使专家组拒绝管辖,而且非WTO法能有效地证明某些违反WTO规则的做法具有正当性。     

非WTO法在WTO争端解决中的适用

在分析WTO专家组和上诉机构具有充分的理由适用非WTO法的基础上,结合DSB解决争端的实践,认为非WTO法在WTO争端解决程序中具有广泛的效力。非WTO法不仅可以使专家组中止管辖权,甚至在更多的情况下使专家组拒绝管辖,而且非WTO法能有效的证明某些违反WTO规则的做法具有正当性。     

Why Criminal Law: A Question of Content?

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments.

The State of Nature and Laws of Seinfeld: Not That There’s Anything Wrong With That

Seinfeld (1989–1998) and it’s co-creator’s Curb Your Enthusiasm (2000–present), are each considered groundbreaking television. Critics regard their humor and intellectual comedy as Twain-like and creative. While both shows have been criticized for their character’s indifference and apolitical attitude, the programs resonate with those in society who more subtly consider law and politics. This project argues that Seinfeld and Curb present a unique theory of justice. These two shows constitute a common and current image of what is just in society. While critics have argued that Seinfeld and Curb are not shows about nothing, I argue that these comedians offer us a legal philosophy. For those who view these characters as merely “self-absorbed, superficial, and immature,” I posit that they represent the obscure area between what John Locke termed “the state of nature” and what legal scholars call “legal culture.” I propose that these sitcoms demonstrate a way of speaking about law that provides a constitutive theory of law and justice.     

Abetting a Crime

I focus on the set of problems that arise in identifying both the actus reus and (to an even greater extent) the mens rea needed by an abettor before she should be criminally liable for complicity in a crime. No consensus on these issues has emerged in positive law; commentators are enormously dissatisfied with the decisions courts have reached; and critics disagree radically about what reforms should be implemented to rectify this state of affairs. I explicitly deny that I will be able to solve these problems, although I hope at least to identify a central source of the confusion. In my view, the problem results largely from conceptualizing the liability of abettors as derivative. This diagnosis helps us to understand why the problem is likely to remain insoluble in positive law. If the test of an adequate theory consists primarily in its ability to produce results that conform to our moral intuitions about how particular cases should be resolved, no approach that can be implemented in the real world will prove wholly satisfactory. I advance a hypothesis about why failure is inevitable and what should be done in light of this predicament. Legal realities compel us to adopt a position that is suboptimal from a moral point of view.     

Data retention

Use of our mobile communication devices tells a good deal about us. It is often the case that what number calls what number, at what times and frequencies and, in the case of mobile phones from and to what geographical locations can be as revealing to law enforcement and national security agencies as the actual contents of messages. Inevitably, though, this may involve the processing of data concerning millions of people who have no inclination to engage in unlawful conduct. Establishment of a legal regime for data retention that balances the claims of law enforcement agencies to prevent and detect criminal and terrorist activities has proved to be a difficult task. A number of legal challenges have been brought before the British and European Courts and this note seeks to consider and place in context the recent litigation involving the legality of the United Kingdom's Data Retention and Investigatory Powers Act 2014 (Watson and Others v. Secretary of State [2018] EWCA Civ 70).     

A general strategy for differential forensic analysis

The dramatic growth of storage capacity and network bandwidth is making it increasingly difficult for forensic examiners to report what is present on a piece of subject media. Instead, analysts are focusing on what characteristics of the media have changed between two snapshots in time. To date different algorithms have been implemented for performing differential analysis of computer media, memory, digital documents, network traces, and other kinds of digital evidence. This paper presents an abstract differencing strategy and applies it to all of these problem domains. Use of an abstract strategy allows the lessons gleaned in one problem domain to be directly applied to others.     

Of Mines,Mining, and Imagining: Rights without Society?

As a polyvocal discipline that integrates studies of law in society, socio-legal studies should have no problem accommodating civil liberties and human rights. Numerous methodologies and frameworks present themselves as illuminating, troubling, and critiquing conceptions and experiences of rights. Legal analysis of human rights is nevertheless often abstract and highly technical. But what if socio-legal analyses of rights were not available? What would be lacking? Using a personal situated methodological approach, I explore the Journal of Law and Society's back catalogue to reflect on what civil liberties and human rights might be without socio-legal studies.     

刑事既判力理论及其中国化

欧陆的刑事既判力理论源于罗马法,指刑事既决事由所创设的稳定诉讼状态,包括既决事项的实质确定力和程序结果的自缚力。刑事既判力旨在解决刑事判决生效后既决事由的效力范围及程序安定性等问题。程序安定、诉讼经济及权利保障是其理论基础。在效力类型上,终局判决的既判力可分为肯定效力与否定效力、相对效力与绝对效力以及主观效力与客观效力。免诉裁决虽不构成严格意义上的刑事终局判决,但亦经过较严格的证明程序,具有"类"既判力。刑事既判力阻却制度奉行"禁止不利于被告的变更"原则,严格限制非常上诉与再审程序的启动。中国刑事诉讼长期缺乏程序安定的理念,再审程序的启动具有极大的随机性和任意性,应引入既判力理论,以维护判决的权威性及程序的安定性。     

One more outing for Arsenal: a case of dilution or one for restitution?

Legal context. This note, which comments on the preceding pieceby Susie Middlemiss and Steven Warner, deals with the implicationsfor the future development of passing-off of the dicta of AldousLJ in Arsenal v Reed, which are considered there. Key points. The article concludes that Aldous LJ was unlikelyto have been contemplating the introduction of a common lawdoctrine of trade mark dilution, or any other extension to passing-offwhich would remove misrepresentation from its central positionas one of the essential elements of the Classical Trinity, andthat the existing state of the authorities rules out any suchdevelopment by the Court of Appeal. Practical significance. It is tentatively suggested that anextension of existing passing-off principles to cases of pureunjust enrichment may have been what Aldous LJ had in mind,and that this would not necessarily be too radical a step forthe common law to accommodate.     

Patent Enforcement in Commonwealth Countries: A Comparative Analysis

The article addresses the legal basis of the circumstances surrounding the recording of confessions and how the circumstances may adversely impact on human rights. Recent examples of how the Courts have rejected confessions call for a fresh approach. Although most cases are resolved through confessions taken by the police, still there ought to be safeguards prior to such recording. It is suggested that the procedure which obtains in India would ensure that confessions are unchallengeable. At the end of the day what matters is that the criminal justice system does not become a licence by the police to undermine human rights.     

Treasure and tragedy in kmem_cache mining for live forensics investigation

This paper presents the first deep investigation of the kmem_cache facility in Linux from a forensics perspective. The kmem_cache is used by the Linux kernel to quickly allocate and deallocate kernel structures associated with processes, files, and the network stack. Our focus is on deallocated information that remains in the cache and the major contribution of this paper is to illustrate what forensically relevant information can be retrieved from the kmem_cache and what information is definitively not retrievable. We show that the kmem_cache contains a wealth of digital evidence, much of which was either previously unavailable or difficult to obtain, requiring ad hoc methods for extraction. Previously executed processes, memory mappings, sent and received network packets, NAT translations, accessed file system inodes, and more can all be recovered through examination of the kmem_cache contents. We also discuss portable methods for erasing this information, to ensure that private data is no longer recoverable.     

How virtual are virtual economies? An exploration into the legal, social and economic nature of virtual world economies

Virtual world economies are undoubtedly increasing in growth, participation and importance. Their macroeconomic impact has already been seen as important in the real world economies; however its governance and jurisdiction is unclear. This paper will argue that virtual economies are not actually as virtual as they first appear to be. Secondly the paper argues that because of the real world effects and impacts virtual world economies can have, they should be applicable to real world jurisdictions and regulations. The question that is therefore posed is in which jurisdiction should the legal backbone be placed? The paper will be divided into several parts. Firstly, a background of what virtual worlds are, and what they mean in linguistic definition. Secondly, a review of law economics and history shall be considered to determine that what is once considered ‘other worldly’ is accepted as the norm. Thirdly, the paper will consider a virtual world economy, namely that of Second Life to establish the real world impacts that virtual world economies can have. Fourthly, the paper will consider two case studies of financial crisis occurring in the virtual worlds and the synergies we can draw from the real world. Finally, the paper will conclude with the proposition that legal governance is required and will enable what is already a lucrative business to flourish further within the realms of possibility and not virtually.     

Age estimation of adults from dental radiographs

Previous studies have shown that with advancing age the size of the dental pulp cavity is reduced as a result of secondary dentine deposit, so that measurements of this reduction can be used as an indicator of age. The aim of the present study was to find a method which could be used to estimate the chronological age of an adult from measurements of the size of the pulp on full mouth dental radiographs. The material consisted of periapical radiographs from 100 dental patients who had attended the clinics of the Dental Faculty in Oslo. The radiographs of six types of teeth from each jaw were measured: maxillary central and lateral incisors and second premolars, and mandibular lateral incisors, canines and first premolars. To compensate for differences in magnification and angulation on the radiographs, the following ratios were calculated: pulp/root length, pulp/tooth length, tooth/root length and pulp/root width at three different levels. Statistical analyses showed that Pearson's correlation coefficient between age and the different ratios for each type of tooth was significant, except for the ratio between tooth and root length, which was, therefore, excluded from further analysis. Principal component analyses were performed on all ratios, followed by regression analyses with age as dependent variable and the principal components as independent variables. The principal component analyses showed that only the two first of them had significant influence on age, and a good and easily calculated approximation to the first component was found to be the mean of all the ratios. A good approximation to the second principal component was found to be the difference between the mean of two width ratios and the mean of two length ratios, and these approximations of the first and second principal components were chosen as predictors in regression analyses with age as the dependent variable. The coefficient of determination (r²) for the estimation was strongest when the ratios of the six teeth were included (r² = 0.76) and weakest when measurements from the mandibular canines alone were included (r² = 0.56). Measurement on dental radiographs may be a non-invasive technique for estimating the age of adults, both living and dead, in forensic work and in archaeological studies, but the method ought to be tested on an independent sample.