Stealing Thunder as a Courtroom Tactic Revisited: Processes and Boundaries

Stealing thunder refers to a dissuasion tactic in which an individual reveals potentially incriminating evidence first, for the purpose of reducing its negative impact on an evaluative audience. We examined whether it was necessary to frame the negative revelation in a manner that downplayed its importance, and found that stealing thunder successfully dissuaded mock jurors even without framing. We also sought to determine the mechanism by which stealing thunder operated, and found that stealing thunder led mock jurors to change the meaning of incriminating evidence to be less damaging to the individual. We also found that stealing thunder's effectiveness did not hinge on whether or not opposing counsel also mentioned the thunder evidence, and that the stealing thunder tactic was no longer effective when opposing counsel revealed to the mock jurors that the stealing thunder tactic had been used on them.     

Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law

The asserted doctrine of unilateral humanitarian interventionhas given rise to considerable debate in international law.This article revisits the use of force in Kosovo to criticallyappraise this debate. The arguments for and against the doctrineare schematically compared and contrasted. Their differencesare methodological, but underlying factors are relevant. Thesemay include a conflict of values (notably, sovereignty versushuman rights), but certainly involve deep disciplinary problemsevidenced by confusing international legal terminology and,especially, the contradictions inherent in identifying and changingrules of general/customary international law. Three factorsare considered as potentially helpful in bridging these faultlines: state practice (unavoidably), the stability of the internationalsystem and accountability. The latter two, at least, sit uncomfortablywith unilateralism.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

专利诉讼中禁止反悔原则的理解与适用

一、禁止反悔原则的概念禁止反悔原则是英美法司法实践中常见的一项原则,既有公法上的禁止反悔,也有合同法上的禁止反悔,同样也有合伙法上的禁止反悔等。但是,究竟何为禁止反悔原则,英美法中尚无定论。英国学者鲍尔给禁止反悔原则所下的定义为:“假如某人(声明人)以言语或行为向别人(受声明人)做声明, 又或声明人有义务说话或采取行为而不履行义务,因     

论专利侵权判定中的禁止反悔原则

禁止反悔原则是限制专利保护范围不合理扩张的一种重要手段,其实质在于防止专利权人采取出尔反尔的伎俩,先在专利授权或维持程序中为了满足有关法律要求而对专利保护范围进行限制,后在侵权诉讼时又企图取消先前所作限制、扩大专利保护范围,从而两头得利,     

效率与诚信之间:专利当然许可申请的规则重构

《专利法》在第四次修订的草案中引入了当然许可制度,允许专利权人不受限制地提出当然许可声明.该规则理想地假设所有申请当然许可的专利权不存在权利负担,忽视了对已经给他人独占许可或排他许可的专利权在事后又申请当然许可的违法行为的规制.在比较法上,英、法、德各国均严格限制了专利权人申请当然许可的条件.从经济分析的角度出发,为专利权人申请当然许可作出合理限制也更突出效率.从立法论出发,赋予在先的被许可人对当然许可提出异议的权利更能够合理地解决该问题.从司法论出发,认定在后成立的专利许可无效,不仅符合立法原意,也契合专利法此次修改中所强调的诚实信用原则.     

论表见代理在行政法领域之导入与适用

表见代理源于私法,一直为行政法学界所忽视。行政权行使过程中出现的众多现象与问题,非仅处理内部关系的委托所能解决。代理与委托相伴而生,唇齿相依。代理制度,特别是表见代理制度引入行政法,既能从理论上补充委托之不足,亦在实践中解决行政管理领域无权代理、越权代理情况下行政责任的承担问题,进而确定行政诉讼的被告,化解行政诉讼中存在的现实困难。     

De/limiting Emptiness and the Boundaries of the Ineffable

Emptiness (śūnyatā) is one of the most important topics in Buddhist thought and also is one of the most perplexing. Buddhists in Tibet have developed a sophisticated tradition of philosophical discourse on emptiness and ineffability. This paper discusses the meaning(s) of emptiness within three prominent traditions in Tibet: the Geluk (dge lugs), Jonang (jo nang), and Nyingma (rnying ma). I give a concise presentation of each tradition’s interpretation of emptiness and show how each interpretation represents a distinctive aspect of its meaning. Given that Buddhist traditions (1) accept an extra-linguistic reality and (2) maintain a strong tradition of suspicion of language with the belief that language both constructs and distorts reality, this paper responds to an issue that is not so much whether or not an inexpressible reality can be expressed, but rather how it is best articulated.     

Ethics in Criminal Justice: John Dewey Revisited

John Dewey has much to say to contemporary criminal justice educational strategies, particularly in respect to broadening the curriculum to include exposure to the humanities, values exploration, and moral decision-making. The case study method, coupled with Socratic teaching use of varied materials from the humanities, can approach an optimal learning experience within the Dewayan model. This educational model is offered in response to the calls for sensitive, holistic criminal justice practitioners in the modern age.     

Borders and Boundaries: Locating the Law in Film

The essay examines the emergence of law and film in the curricula of law schools in the context of Britain. It outlines the development of legal education in England and Wales and the relationship between legal education and training. It notes the broadening out of the syllabus to encompass more politicized courses taught within their socio-economic context like family law and labour law. From this shift of academic focus the politically contextual has extended to the cultural context. The relationship between law and culture both in literature and in other areas has been the end result of this relaxation of focus on professional education. Finally, the precise nature of law and film and its boundaries are discussed.     

Fuzzy Legality in Regulation: The Legislative Mandate Revisited

How does law interact with regulatory reality, and why does legislative mandate, which presumably stands at the apex of a regulatory package, often deviate from its ideal‐type as exclusive organizer of action? These questions are treated in this article through the concept of “fuzzy legality,” which serves as a common title for six different legal arrangements that stray from the ideal‐type legislative mandate, while enabling “perfectly legal” industry behavior. Against the background of potential dangers involved in such practices, the article traces the politics of preference for fuzziness both by regulators and regulatees. It reassesses calls for responsive and reflexive law as a cure for the regulatory malaise: these may have been voiced due to existing overly rigid regulatory frameworks, rather than the intrinsic flaw of legal constructs.     

A-Legality: Postnationalism and the Question of Legal Boundaries

This paper critically examines the prevailing assumption that legal boundaries are becoming irrelevant in postnationalism. While the boundaries of the nation-state are forfeiting some of their hold on human behaviour, postnational legal orders are simply not legal orders unless they can in some way draw the spatial, temporal, material and subjective boundaries that make it possible to qualify human behaviour as legal or illegal. This implies that reflexively constituted legal orders – whether national or postnational – must be presented as legal unities. To the extent that boundaries are the necessary condition of national and postnational legal orders, and therewith of legal unity, they also spawn the possibility of political plurality, manifested in behaviour that resists the very distinction between legality and illegality, as drawn by an order of positive law: a-legality. Rather than signalling the demise of legal boundaries, postnationalism ushers in a novel way of dealing therewith – and with a-legality.     

The International Court of Justice and International Law-making: The Judicial Activism/Self-Restraint Antinomy

The antinomy between judicial activism and self-restraint, wellknown to students of the US Supreme Court, has implicationstoday also for international tribunals. The resort to judicialsettlement of international dispute is still predicated upona certain basic homogeneity of legal cultures and values goingwith them. When, however, social and cultural values are infundamental tension or collision with each other, there maybe an inclination towards activism to try to resolve the conflictsor contradictions. Any such activism on the part of the InternationalCourt of Justice, after the way seemed opened by the landmarkadvisory opinion in Nambia in 1971, effectively "overruling"earlier, more static jurisprudence, seems, however, to havebeen tempered by a perceived obligation of judicial respectfor the constitutional role and missions of the other policy-makingUN organs and other main players in the international community.As a result, this tends to lead to a situation in which theCourt may be dealing with no major, high political–legaltension-issues of the day.     

辩诉交易公正价值之重新审视

公正是司法的最高价值,司法公正具有相对性和多元性。辩诉交易构建于控辩对等的诉讼模式之上,众多相关制度确保了其客观与公正。同时,辩诉交易凸显了诉讼民主、体现了解纷中的效率价值、实现了公正与效率的均衡、确保了公正的最大化,内含着巨大的公正价值,具有旺盛的生命力,因此,借鉴国外先进的司法制度,构建中国的辩诉交易制度当无理念上之障碍。