学术剽窃和法律内外的对策

尽管剽窃与学术诚信相对立,但是,两者又从不同的方向折射出学者个人、学术群体和制度之间的紧张关系。在一定程度,遏制剽窃的力量的来自我们对问题本身的认识和言说,诸如:什么是剽窃?作者为什么要归认来源?版权法、侵权法和学术纪律在遏制剽窃过程中分别和共同担当什么样的角色?本文试图在国内外现有的研究的基础上,以中国实情为主要关注,探讨上述问题。     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

On the economics of plagiarism

Cheating and plagiarism can involve the transgression of intellectual property rights across many areas of life. When a direct financial benefit from such practices is identifiable, the opportunity to seek legal redress is available via civil court action. When it is undertaken by a public official it may constitute malfeasance. Yet in the case of breaches of university regulations (from the growing number of student cheating and plagiarism incidents) subsequent legal intervention may be characterised by situations where the university is the defendant and the alleged plagiarist is the plaintiff (seeking compensation for interrupted study and/or tarnished reputation). University defences can flounder around the issue of proving intent to deceive. What can they do to try to prevent such occurrences? This paper uses economic analysis to examine such issues. Economic models of plagiarism motivated primarily by (i) time-saving and (ii) dishonesty are developed to help frame the discussion. Both model approaches overlap in their implications, namely, ensuring that sufficient resources are devoted to monitoring coursework (to increase the probability that cheating and plagiarism are detected) and of providing sufficiently clear and severe institutional penalties (to counter-balance any expected benefits that the student may perceive to be available from cheating and plagiarism). Policy proposals are raised for further debate and consideration.     

Permissible plagiarism? Navigating normative expectations in the pre- and post-admission landscape

Plagiarism in the context of the law is a highly nuanced and complex concept, involving consideration of academic integrity and disciplinary rules and assessments of intent, which colour the responses of both universities and courts when confronted by the misuse of others’ words and ideas without appropriate referencing. Within academia, plagiarism is treated as ‘a capital offence’. In the context of admission as a lawyer, professional admissions boards in Australia use findings of major plagiarism at university as a reason for denying or delaying admission to practice on two grounds: firstly, if it amounts to cheating per se, as being indicative of a character flaw inconsistent with the character requirements of officers of the court; and secondly on the related basis that it is (or is assumed to be) a reliable predictor of future professional misconduct. Given this, Australian universities must educate students about academic integrity and referencing (particularly in the digital age, where sources and opportunities for misconduct are escalating), provide law students with training and practice in appropriate use of others’ material, and provide relevant information to students about the implications of findings of misconduct being made against them. This is important because, while there is a widespread perception that plagiarism ceases to be a consideration after admission as a lawyer, this is not supported by the decided cases.     

Equity in assessment: discrimination and disability issues from an Australian legal perspective

Assessment equity concerns all educational authorities and practitioners. When educators consider issues of equity, their predominant concern is accommodation of students with special needs, cultural issues, and creating alternative assessment activities that have equivalence to standard activities, so as not to advantage or disadvantage any student in their demonstration of knowledge. This paper examines equity issues in assessment from a legal perspective, drawing on case history from Australia, and based in discrimination and disability law. The paper is intended to assist authorities and practitioners to understand legal implications of educational assessment in order to promote practices that reduce the likelihood of legal claims and the resultant use of financial and human resources away from educational activities. However, the discussion of cases and judgements is also intended to raise issues of whether educational providers and authorities should be more conscionable in their consideration of educational equity and assessment.     

Part one: Turnitin and the perils of entering the evil house of cheat at cheathouse.com

Abstract

Plagiarism is one of the most serious offences in the academic world. It has occurred as long as there have been teachers and students, but the recent growth of the Internet has made the problem much worse. Recent studies indicate that approximately 30% of all students may be plagiarising on every written assignment they complete. The “information technology revolution” is almost always presented as having cataclysmic consequences for education. In post‐secondary circles, perhaps the most commonly apprehended cataclysm is “Internet plagiarism”. Academics at all British universities and colleges can now test students’ work for cheating using the anti‐plagiarism program Turnitin. The program, run by the Joint Information Systems Committee and thought to be the first national system of its kind, offers free advice and a plagiarism detection service to all further education institutions in the UK. This article will try to: first, define exactly what plagiarism is; second, give examples and reports on samples of the new plagiarism detection software; and finally suggest strategies that lecturers can use before turning to the new software.     

A cure for the Blues: resolving nonprofit Blue Cross conversions

This Article analyzes the issues involved in converting nonprofit Blue Cross organizations to for-profit status. These issues have arisen in the context of litigation regarding the "reorganization" of Blue Cross and Blue Shield of Missouri ("BCBSMo"). BCBSMo had reorganized by creating and transferring a majority of its business to a new for-profit subsidiary. Missouri consumer groups and state regulators characterized the "reorganization" as a conversion requiring BCBSMo to transfer its assets to a foundation dedicated to charitable health purposes. BCBSMo, however, denied that it had any obligation to leave behind its assets in the nonprofit sector. The BCBSMo litigation raises issues common to most conversions of nonprofit healthcare organizations, particularly conversions of nonprofit Blue Cross plans. This Article provides a road map for state regulators and the public to follow in ensuring that the public interest is fully protected in such conversions.     

Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change

This article examines the recent academic interest in litigation as a tool to address climate change, as well as the surge of legal actions worldwide to bring the problem to the attention of judiciaries. This new interest reveals the frustration of legal scholars and activists at the slow rate at which policy makers are addressing the climate change problem. This article shows the slow build-up of academic interest in litigation, before moving on to analyse the kinds of legal causes of action that are being used in different parts of the world. Most of these cases have not been fully resolved, and it is more than likely that the judgments may not always be favourable to the plaintiffs, but at least a first step has been made to involve yet another forum for addressing the climate change problem.     

检察机关食品公益诉讼探讨

2011年《民事诉讼法(修改稿)》草案审议时,许多学者提出了食品公益诉讼的概念,使公益诉讼再次成为热议的焦点。就司法实务而言,重要的不是讨论食品公益诉讼的必要性和可行性,而是探究食品安全公共利益在法律上的具体诉求,以及如何满足其诉求。本文以检察机关提起食品公益诉讼为例,借用经济学上外部性理论,从公益诉讼的保护对象入手,分析食品公益诉讼的客体及其请求权基础,并结合诉讼法的基本命题,论证食品公益诉讼的诉讼请求、损失的计算以及举证责任等问题,进而划分公益诉讼与行政权、私权在诉讼法上的衔接界线。     

Paying the piper

The results of our assessments, apart from providing us with an assurance of the quality of our own provision, make representations to employers and other organisations that rely on our results. If universities are to continue to use essay-based coursework as a basis of assessment, we have to have confidence in it. The ease with which students can compile essays from Internet-based sources is a known and probably growing problem. Knowing of its existence, as professionals we are surely under an obligation to employ the best available techniques to counter it. In any event, it would send an unfortunate message to the world if, being aware of plagiarism possibilities, we have methods to counter them but choose not to use them. The only reasonable interpretation would be that we were condoning it. In principle, at least, the Internet can be used to conquer plagiarism, at least as successfully as, up to now, it has facilitated it. But using the Internet to fight a problem exacerbated by the Internet raises issues of both a legal and pedagogical nature. It is these issues which are examined in this article.     

The impact of litigation on nursing home quality

Government reports indicate that regulations have been ineffective in improving quality of care in many nursing homes. Some analysts feel that litigation against nursing homes may be the result of quality problems that are monitored during the inspection process, some contend litigation merely causes quality problems by diverting financial resources away from patient care, and some argue that litigation is duplicating the efforts of the inspection process. Given that the relationship between litigation and inspection-oriented measures of quality is not clear, this article explores the relationship empirically. When a significant relationship is found, the empirical results suggest that litigation is associated with a decline in inspection-oriented measured quality in the nursing home facing the legal claim. In contrast, litigation against a chain has a very different relationship to firm-level quality, where firms within a chain that is being sued have higher levels of inspection-oriented quality. Our results suggest that legal claims may result from quality problems that go unmeasured during the inspection process. However, more research in this area is warranted.     

Ladders and Bushes: The Problem of Caseloads and

The "litigation explosion" has been a frequent topic of concern in both academic circles and the popular press. This idea draws its polemical power from the assumption that litigation rates were lower in the past. But we presently know little about long-term trends in court activity. This article is a critical review of the existing literature on long-term litigation trends and the social development model which scholars have posited to explain changes in litigation patterns. Whether courts are indeed facing imminent crisis because of an explosion is still very much an open question; the extant literature offers no proof of an explosion. The available data do suggest, however, that previous studies may have been overly optimistic in expecting litigation trends to follow any single pattern. The questions about litigation rates will remain open until we are able to gain a fuller understanding of the trends in court activity over time.     

中国环境公益诉讼条款的立法意图——兼论人民法院在环境公益诉讼中的角色和权限

从对1970年美国公民诉讼立法辩论和当下中国环境公益诉讼立法争论的比较中可以看出，当前紧迫的任务之一是确立某部环境单行法上环境公益诉讼条款的具体立法意图。环境公益诉讼旨在减少对环境本身的损害，而不是赔偿对受害者的人身损害和财产损害。环境公益诉讼的第一审审判机关应为高级人民法院，人民法院在环境公益诉讼中既要拓展严格审查的角色，又要恪守职能限制。     

FAMILY COURT IMPROVEMENT AND THE ART OF GRANTSMANSHIP: A JUDGE'S PERSPECTIVE

Many American courts face funding obstacles as they try to create and implement unified family court processes that have not been part of the traditional family court adversarial process. To create new staff positions, build and equip adequate facilities, and create and implement innovative programs, grant funding may be available to supplement what local and state governments provide. While social science research confirms that children are adversely affected by exposure to high‐conflict family litigation and domestic violence, many communities have few affordable and available resources to address these issues. This article presents lessons and principles that one court learned as it applied for a grant to design programs for high‐conflict families and families with domestic violence history.     

证券诉讼在中国:适用前景与改进方略

作为证券市场中的一种纠纷解决和法律执行方式,诉讼的优点包括市场相容性、灵活性、分散性、公开性等。尽管其功效受到了制度性的压抑,但要在中国进一步展开证券诉讼,已经有了相当的制度和学理准备;从现实环境看,诉讼的展开也会对社会秩序产生较为积极的影响。在推进完善诉讼机制时,要注意克服法院层面的制度性消极因素;通过公权和私权结合的方式来推进,以契合中国国家权力主导的基本格局,加强改革的可行性。     

转型时期我国民事诉讼法学的主要任务与重心

民事诉讼法学的研究任务和重心会因为社会时期或阶段的不同而有所不同。在我国当下社会转型时期,法治初创阶段,民事诉讼法治也处于大规模的建构和实践之中。因此,民事诉讼法学的研究任务就应当集中于对民事诉讼制度原理的研究,以适应民事诉讼法治的大量建构和实践的需要。民事诉讼法学的大量研究资源也应当集中投入其中。过去由于受错误司法政策的引导和影响,将有限的学术研究资源投向了与民事诉讼原理研究关系不大的一些领域,从而导致了民事诉讼法学研究重心的偏移,也导致了民事诉讼理论研究本身的贫困化。应当将民事诉讼法学研究的主要任务和重心回归于民事诉讼法制度原理的探究,真正推动我国民事诉讼法治的发展,提升民事诉讼法学理论研究的水平。     

Fathers and sons: some effects of prolonged custody litigation

In all jurisdictions, for a variety of reasons, child custody and visitation issues may be reopened at any time. The children at issue, already likely to have been traumatized by problems in the parental marriage and subsequent separation and divorce, are affected further by still more litigation. The cases of three preadolescent boys who are the subjects of such prolonged litigation are presented. In each, the boys resided with their mothers as the primary custodial parents, the fathers having generally liberal rights of visitation. Regardless of which parent raised further court-related issues after the original agreements, the father-son relationship was most severely affected by continuing legal actions and related parental actions. Each child became increasingly fearful of the next anticipated visit by the father, who was cast into the role of villain by the child. Efforts to improve these damaged relationships through joint parent-child therapeutic attempts were largely of little avail. In spite of what may have been good experience with the person of the judge who dealt with earlier litigation, the children became fearful of what the next might be like or might do, viewing the judge as the person in power to whom parents and attorneys alike deferred. It is suggested that, wherever possible, prolonged litigation be avoided in the best interests of the child and of preserving necessary child-parent relationships.     

法学之殇

学非易事,磨砺以求,未必有所成,现如今法学论文人人会写,学术研究似为易事,这类现象的背后是学术出现严重失范、脱序现象。真学术必然要有创新,法学研究必须强调学术原创性,窃人立意,掠人之美,与剽窃词句如出一辙;创制一套新词,制造语言的魔障,也不足取。学者不能不没有一点“专利权”意识,某种学术观点既然有人提出,再当作自己的创见,便属“学术不端”。法学论著最重要的是思想,其价值应当表现在有原创性观点,做不到这一点之所谓“学术”不过是“表态式学术”。缺乏健全的学术批评是当今法学研究保持低劣化和“学术成果”泛滥成灾的一大原因。高质量的法学研究成果需要精工细雕,为减少垃圾学术,学者应有不写或者少写的勇气。