Magical Thinking in Trademark Law

People in all societies have a tendency toward magical thinking. This human inclination is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us successful, happy, and fulfilled. In this article, I suggest that such advertising creates a system of beliefs resembling a totemic religion. In this religion, brands perform the role of sacred objects. Trademark law initially aims at preventing consumer confusion. Yet, today, famous trademarks are extensively protected against nonconfusing associations. I argue in this article that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and trademark doctrines, such as the doctrine of dilution, I suggest that famous marks are legally treated as magical, sacred objects. This legal approach amounts to endorsing the commercial religion of brands.     

Ambiguity and Conflict in the Implementation of Evidence Law in Criminal Matters: a Study of the United Arab Emirates Jurisprudence

Due the lack of the law of evidence in criminal matters in the United Arab Emirates (UAE), it is important to address the issue of the rules of evidence in the UAE where Sharia criminal law is applied along with enacted law of Criminal Procedural Law. The courts’ decisions contradicted each other because of the differences of opinions among the law schools exist in Islamic law in one hand and between the Sharia criminal law and enacted law in the other hand. Further, the Criminal Procedural Law does not state the rules of evidence in clear manner to judges and individuals. The lack of stated rules and procedures and what evidence could be accepted and what cannot are not definite in the UAE legal system. The article will argue that because of the differences in the opinions related to the admission and acceptance of the evidences exist among the Islamic law schools and between the Sharia law and enacted law, the court decisions have contradicted each other and create ambiguities in the field of the evidence in criminal law. The Islamic jurists have different opinions about evidence in fornication crimes, Qasama evidence in qisas, and women and non-Muslim testimonies. Such differences affect the Union Supreme Court decisions. Therefore, the UAE legislator must enact the law of evidence in criminal matters in order to reduce the contradiction between judges’ opinions, clear ambiguities, and protect individual rights as it did with civil and commercial matter.     

Flag desecration in American culture: Offenses against civil religion and a consecrated symbol of nationalism

Adoration for the United States flag is emblematic of American nationalism and patriotism. Moreover, in extreme forms, its rigid orthodoxy also reflects civil religion — a non-sectarian faith in which secular objects are transformed into sacred icons. Ostensibly, elements of civil religion imbue reverence for the flag, and although the recent flag protection campaign has caught the attention of intellectuals from various academic disciplines, sociologists are conspicuously absent from such discourse. In light of its relevance to civil religion, the dearth of sociological analysis on flag desecration is especially disconcerting. This article offers several theoretical explanations for the social construction of flag desecration and its sociological significance to civil religion.     

论民事诉讼中法院与当事人主体地位的平等性

“法院主导地位说”长期统治民事诉讼法学界并根植于人们的观念中。而笔者以为，诉讼机制的现代化需要诉讼程序与制度设计的科学化和正当化，而这与诉讼观念与诉讼主体地位观念的现代化不无密切关联。基于此，本文提出并论证了民事诉讼中的法院与当事人诉讼主体地位平等性问题，旨在唤起人们在当今的社会情势下对民事诉讼中法院与当事人的关系重新予以审视，并意图动摇已在人们意念中根深蒂固的“法院主导地位说”。     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

Parental Kidnapping: A Survey of Left-Behind Parents

Parental kidnapping is examined through a survey instrument developed by Rosemary Farley Janvier. The survey was tested and mailed to 283 left-behind parent victims nationwide; 65 parents elected to participate (a 23% return rate). The survey results yielded a statistical profile of parental kidnappings, with distinct differences between domestic and international cases. The differences were both in gender of the perpetrator and the victims, marital, and custodial status. The circumstances surrounding the kidnappings, use and effectiveness of existing legal remedies as preventive measures, law enforcement, attorneys, and the court?s responses, both pre-kidnapping and post-kidnapping and the emotional and financial costs to the parent victims were assessed. Recommendations by the left-behind parents for prevention of parental kidnappings are offered for legislative changes and procedural changes for the law enforcement community, attorneys, and the judiciary in decisions to be made to ultimately protect children from this trauma through prevention. Special recognition to the staff of the Ocean County Advisory Commission on the Status of Women, Ann Finnegan, Project Coordinator, and Lynn Ross, clerical support.     

民事制裁制度性缺陷评析

民事制裁是特殊时期的立法产物,也是法学理论不成熟的体现。这一制度表面上维护了法律的权威,但实际却与司法权的被动性、中立性相违背,以司法权威的丧失为代价。在民事制裁中,法院行使了行政权和个案中的立法权,违反分权制衡的法治原则。同时,民事制裁制度也不符合正当法律程序的要求,应在未来的民事立法中取消民事制裁。在被取消前,应以司法解释的方式限制民事制裁的适用。     

International agreements

This article discusses the place of non liquet in the statute and practice of the International Court of Justice. It argues that although there is no prohibition of non liquet in the statute of the court, the completeness of the court of international law in article 38(1) of the statute makes no room for the court to declare non liquet in practice. The author argues that the inclusion of general principles of law and judicial decisions in article 38(1) makes the sources of international law available to the court complete, thereby affording the court the means to avoid non liquet through judicial creativity.     

论民事证人拒不出庭作证的法律制裁

对民事证人拒不出庭作证予以法律制裁,是证人出庭作证制度的重要内容之一。由于我国《民事诉讼法》对此没有规定,最新司法解释亦未补充,司法实践中便无法操作,这成为我国证人出庭率偏低的重要原因。文章结合国外立法例,对目前学界提出的几种对拒不出庭证人的制裁措施逐一分析:排除证据使用,符合我国目前审判方式改革潮流及证人证言证据的特点;承担诉讼费用亦符合民事诉讼的本质;罚款是国内外普遍接受的方式;拘传与拘留在我国目前有其存在的必要性;刑罚制裁则不符合我国的实际情况,不宜采用。     

Court Order No, 4, USSR Supreme Court Plenum,March 18, 1963

A review of the practice in recovering court expenditures [raskhody] in civil cases and court costs [izderzhki] in criminal cases has demonstrated that courts do not always observe the laws in effect with regard to this matter, that they commit significant errors. Frequently, in accepting the filing of suits and appeals in civil cases, courts do not exact payment of the state fee provided by law, or else they determine it inaccurately. They do not always take into consideration the fact that expenditures caused the court in connection with the trial and the state fee, from which a plaintiff has been exempted, are to be recovered from the respondent for the state in proportion to the satisfied portion of the claim in the suit. In violation of Article 45 of the RSFSR Code of Civil Procedure and the corresponding articles of the civil procedural codes of the other union republics, many courts do not demand that the parties make advance payment of the sums needed to meet the costs of calling witnesses and experts, as well as the expenditures involved in on-site examinations.     

当事人程序主体性原则──兼论“以当事人为本”之诉讼构造法理

当事人程序主体性原则,所要阐明的是民事诉讼制度"为谁而存在"的问题。按照当事人程序主体性原则的要求,诉讼程序应当以"当事人为中心"而构建,尊重当事人的意愿、保障其权利和自由,让其发挥决定、支配和主导作用;而法院则应当为满足当事人的诉讼要求提供妥当的"司法服务",为当事人进行诉讼创造具有"亲和性"和"易于理解"的诉讼空间。当事人程序主体性原则,还要求建立以当事人为主导、畅通主体之间的"对话"与"沟通",形成既有"分权"又相互"协作"的诉讼构造关系。     

Lis Pendens,Choice of Court Agreements and Abuse of Law Under Brussels Ibis

The Brussels Ibis Regulation aims to ‘improve the efficiency of choice of court agreements’ following widespread criticism of the Gasser judgment of the European Court of Justice. To this end, the Regulation introduces a priority mechanism in Article 31(2) in favour of the court designated in exclusive choice of court agreements. This article analyses, first, the problem, which the new priority mechanism in the Brussels Ibis Regulation intends to resolve. Second, it describes how the reforms in the Brussels Ibis Regulation address the practical issues raised by Gasser. In this regard, the relevance of the abuse of law doctrine in EU law will be discussed. Finally, the article considers the practical application of the new priority mechanism and in particular the standard of review the non-chosen court should adopt in applying Article 31(2) Brussels Ibis Regulation.

     

民事诉讼费用的可诉性与诉的设置

民事诉讼费用作为人民法院运作经费的主要来源 ,直接影响到诉讼中当事人人权保障和法院的权威。诉讼费用构成的不确定性和裁判机制的非科学性 ,决定了当事人对法院单方面裁断的诉讼费用具有诉的利益。而国家对公民诉讼权保障的无条件性 ,要求法律建立专门的诉讼程序 ,为当事人不服人民法院对民事诉讼费用的裁判提供救济。     

制约权力和规范行为——修订《民事诉讼法》的标准、指导思想和立法技术刍议

制约权力和规范行为是良法的标准,良法是法治社会的基本要求.制约权力立法指导思想的缺失和不注重在立法技术上规范行为是我国《民事诉讼法》落后的重要原因.修订我国的《民事诉讼法》,把制约法院权力作为立法指导思想,把注重规范法院的行为作为立法技术上的重点,使其符合良法的标准,对于保障民事诉讼的正常进行、有效防止法院的怠法、枉法行为将起到积极的作用.     

城隍神的构造原理:法律与宗教互动的古代中国经验

超出世俗理性主义的法史研究模式,重建古代中国法律与宗教的真实联系,颇有必要。古代法官的司法经验中附着于城隍神身上的“神迹”不完全是神道设教的虚构,而可能是真实的个案。城隍神作为正义守护神的构成原理具有四个部分:儒法合流的理性主义法律体制不足以解决法律全面实施的难题;神道设教的传统国策可以发挥神灵震慑的作用;只有在城隍神的法庭上才可能实现远比国法所能企及的更大的正义,就是使一个人对其生前死后一切行为负责的因果报应正义;源源不断的报应故事使神迹和神明建立起了因果联系。还原正义守护神的构成原理有助于理解为什么与宗教疏离的法律会失灵。     

Deconstructing Diplomacy: Derridean Political Theory and U.N. Deal-Making

This paper engages in a reading of several Derrideantexts, particularly Spectres of Marx, Politics of Friendship, and The Post Card, inan attempt to divine a coherent Derridean social andpolitical philosophy. It is submitted that such acoherent theory of civil society can be made out, onewhich situates civil relations in national borders andshared history. Such a situation, however, isproblematic for international relations theory andinternational law, which depend a priori onlocating the foundations of civil society in somethingwhich transcends nationalism and shared experience. By engaging in a reading of the Declaration ofFriendly Relations Between States, this paperdemonstrates the apparent incompatibility of Derrideanpolitical philosophy and international law. In theprocess, it explores Derrida's strategy fortransforming the nature of international relations andlaw and, in so doing, identifies the relationshipbetween Derridean theory and the international legaltheory of Arangio-Ruiz.     

Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate.     

法院与当事人诉讼角色定位之机理探析

民事诉讼是以解决纠纷为目的的活动。在诉讼过程中 ,法院与当事人之间的相互关系即彼此在诉讼中的地位 ,直接决定了一个国家民事诉讼的体制性问题。如何调整法院与当事人在诉讼中的诉讼关系 ,是每一个国家民事诉讼法必须解决并加以规定的基本内容。民事诉讼的辩论原则、处分原则以及诚实信用原则 ,从不同的角度界定了法院与当事人在诉讼中的地位。辩论原则在形成法院裁判的基础方面起着调节作用 ;而处分原则在程序的进行、权利的处置等方面的支配权进行分配 ;诚实信用原则则在均衡并促成法院与当事人协同诉讼方面发挥着作用。     

Meaning, Time and the Law: Ex Post and Ex Ante Perspectives

This paper considers the tension between timelessness and timeboundedness in legal interpretation, examining parallels between sacred texts and secular law. It is argued that familiar dualities such as those between statute and judge-made law, law and equity, written and spoken discourse, dictionary meaning versus intended or contextual meaning, can be examined using this timeless/timebounded framework. Two landmark English cases, DPP v Shaw (1961) and R v R (1991) are analyzed as illustrating contrasting aspects of the socio-legal politics of “reasoning backwards”. The related temporal distinction between ex ante and ex post points of view is examined both within legal theory and as a key issue for linguistic and semiotic systems. The argument is made that this distinction is the key to a wide range of methodological and theoretical problems in relating linguistics and semiotics to law.

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论国际刑事法院证据规则的混合模式——以大陆法系和英美法系证据规则比较为视角

国际刑事法院诉讼规则是一种混合模式,证据规则也不例外。而这种混合模式融合了大陆法系证据采纳的宽泛规定和普通法系证据收集、出示和审查中的对抗制因素。这种混合模式有其特定的成因,而大陆法系和普通法系对这一混合模式则存在不同的看法,本文从比较视角对这一问题进行了分析,并指出了其对我国证据立法的启示。