算法行政:社会信用体系治理范式及其法治化

大数据下的信用评级机制生成独立于数据本体的数字人格。数字资本主义利用算法控制来推动金融信用的产生与发展,进而监控资本主义利用私有化数字人格实施黑箱管控。我国基于数据驱动的社会信用体系属于数字技术公共基础设施,在矫正监控资本主义逐利偏差的同时,生成与法律强制下行政管理方式相并行的算法行政。算法行政作为全新的权力工具导致数字社会治理机制的范式转化,这对法治国的传统法律原则提出挑战。福柯的规训理论可以解释基于数字人格的权力运作以及社会信用体系的正当性,也能解构算法行政生成的自我规制型问责制,由此生成全新的数字行政法学。这为我国社会信用系统的法律规制提供新形态的学科支撑,也为该制度输出提供西方话语体系中的说服工具。     

The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.     

论视为作者原则--以中美两起著作权纠纷案为视角

1986年在美国发生的"美国的第三世界"版权纠纷案和1995年发生在我国的十世班禅大师灵塔案的涉案作品,均为雕塑作品,均是在委托关系下创作完成的,美国初审法院和中国二审法院均将委托关系认定为雇佣关系,并且均适用了视为作者原则。但中美两案的最终结局却大相径庭。1989年美国最高法院在此案终审中申明,委托关系不是雇佣关系,委托作品不是雇佣作品,不适用视为作者原则,遂做出维持二审判决的终审判决,在美国持续了百年之久的委托作品与雇佣作品之争,从此尘埃落定。此终审判决对于移植视为作者原则后深受法人作品与职务作品(雇佣作品)之争困扰的我国法院和正在进行中的著作权法的修订,均有重要的示范意义和参考价值。     

The bugle of justice: the romantic socialism of William Morris and George Orwell

This essay considers three possible applications of the concept of justice to the work of William Morris and George Orwell. It begins with a brief look at the treatment of criminals in Morris's utopian writing: a specific issue which anticipates some of the points of the modern restorative justice model. The bulk of the essay is devoted to the elaboration of four interconnected elements of the utopia of romantic socialism in Morris and Orwell: elements that provide the positive building blocks of the just society of human well‐being. The roles of the past, of nationality, of the natural environment, and of the demechanization of labor in the creation of the community of the future are considered. The final section, by drawing on several other specimens of socialist utopianism, examines the insufficiency of emotional ethical responses to injustice in producing a convincing version of ideal arrangements, and thereby highlights the value of the romantic visions of Morris and Orwell.     

宽容与平衡:中国刑法现代化的伦理思考

作为自然属性与社会属性的统一,人性不仅是人类道德的基础,也是刑法现代化所必须具备的伦理精神。以宽容的眼光看待人性,不仅要尊重人性中利他的欲望,而且要容忍人性中利己的要求,这是人类道德的基础,也是刑法现代化所必须具备的伦理精神。而正是中国刑法人性基础的薄弱乃至于人性宽容精神的缺位,引发了中国刑法的道德化危机,并导致了中国刑法在立法制度安排、司法实务适用和刑法理论研究中的一系列误区,因而需要以利益平衡为原则,培育中国刑法的现代伦理品格。     

Racial capitalism and punishment philosophy and practices: what really stands in the way of prison abolition

This paper explores punishment philosophy and practices in the United States from a critical criminological perspective, utilizing a racial capitalism framework to illustrate forces that impede prison abolition. The paper examines historic and contemporary punishments implemented against ‘others’ to show how such practices help to sustain white capital accumulation and white privilege. The paper also discusses a number of the individual social-psychological theories that assist in the maintenance of that system. Finally, the paper calls for the eradication of racial capitalism through a stronger revolutionary consciousness.     

“O me! O me! How i love the earth”: William Morris’s News from Nowhere and the birth of sustainable society

Arguing from an ecocritical perspective, in this article I seek to show that Morris, in his ‘green’ utopia News from Nowhere, envisaged a new social order in which communities are socially just, participatory, independent, economically viable and environmentally sustainable. I will argue that Morris, by stressing the need for a decentralized and polycentric country and by showing how co‐operation, as opposed to competition, can form a symbiosis between the members of the society, effectively linked the local with the global. I will show that Morris, turning against systematized globalization as portrayed in Edward Bellamy’s Looking Backward, gives an example of a ‘sustainable’ globalization that shares much common ground with the current politics of bioregionalism. I will finally suggest that Morris’s vision of London as an ecological city, where waste has been abolished and human beings live in harmony with nature while respecting social justice, is more urgent than ever and can be instrumental as a vision for our future life.     

The value of life in legal contexts: survey and critique

Value of life issues traditionally pertain to insurance of thelosses of accident victims, for which replacement of the economicloss is often an appropriate concept. Deterrence measures ofthe value of life focus on risk-money tradeoffs involving smallchanges in risk. Using market data for risky jobs and productrisk contexts often yields substantial estimates of the valueof life in the range of $3 million to $9 million. These estimatesare useful in providing guidance for regulatory policy and assessmentsof liability. However, use of these values to determine compensation,known as hedonic damages, leads to excessive insurance.     

The logic of policy change: structure and agency in political life

Policy universes are usually characterized by stability, even when stability represents a suboptimal state. Institutions and processes channel and cajole agents along a policy path, restricting the available solution set. Herein, structure is usually to the fore. But what of agency? Do no actors choose? In fact, they do, even in policy environments of incrementalism, even amid hostility. But where agency makes for momentous change is during the punctuations of long policy equilibriums, perfect storms enabling nonincremental movement onto a new policy trajectory, departing from the old path. On both levels, the interaction effects of both structure and agency make a difference--incrementally in the first case, nonincrementally in the second. It's not just one damn thing after another, nor does just anything go.     

The Enjoyment of Rights and Freedoms: A New Conception of the 'Ambit' under Article 14 ECHR

Article 14 of the European Convention on Human Rights, as applied by the UK judiciary under the Human Rights Act 1998, is in danger of becoming as 'parasitic' as it is often described. Judges have inappropriately narrowed the scope of the 'ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality. The emerging approach departs from Strasbourg jurisprudence, and fails to give full effect to the language and intent of Article 14. This trend need not continue. This article begins the process of fashioning a new conception of the ambit of Convention articles: one that could change the fortunes of Article 14 cases in the UK, but that flows naturally from the precedents of the European Court of Human Rights, and gives effect to the spirit of the HRA.     

Human Rights and Unfair Dismissal: Private Acts in Public Spaces

This article addresses the termination of employment because of the conduct of the employee in her leisure time, in the light of the right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of UK courts and tribunals, which is based on a primarily spatial conceptualisation of privacy, is flawed. A fresh approach to privacy, resting on the idea of domination, is proposed, which is sensitive to the particularities of the employment relationship. Considering the fairness enquiry in dismissal, it argues that off‐duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice. It further proposes that a particularly meticulous test is appropriate when certain suspect categories, such as the employees' sexual preferences, are at stake.     

The flip side of ISP’s liability regimes: The ambiguous protection of fundamental rights and liberties in private digital spaces

Since the inception of the Internet, Internet Service Providers (ISPs) have been used to segment cyberspace and make it possible for national states to apply their local laws to conduct having effects within their borders. This is true in particular in the realm of intellectual property. When one looks at the national regulatory regimes supposedly framing the behavior of ISPs, there appear to be more similarities than differences at a first glance. Does this mean that the national or regional legal frameworks regulating the behavior of ISPs, which are increasingly considered to be the sword of public authorities, should be identical in all legal systems? Is it not true that the content of these national or regional legal frameworks regulating the behavior of ISPs should partly depend upon the local trade-offs among conflicting fundamental rights and liberties? Indeed, private power can jeopardize the exercise and the very core of individuals’ prerogatives as much as public power and priorities vary from one legal system to another. This paper therefore seeks to highlight the dependence of national regulatory modes framing the conduct of ISPs upon the strength of certain fundamental rights and liberties. More precisely, while the first part aims to explore the influence of certain fundamental rights and liberties upon the regulatory modes set up by national legislators, and in particular free speech, from the perspective of the user-to-user relationship, the second part of this article is devoted to the protection of these fundamental rights and liberties from the perspective of the intermediary-to-user relationship. It shows that at least within two legal systems the dependence described initially is in reality altered by the prevalence of the intermediary’s interests, even if the latter are in part affected by a recent trend towards more state interventionism. As a result, national solutions appear to be less innovative than foreseen.     

The prosecution of Chinese organized crime groups: the Sister Ping case and its lessons

This article analyzes the investigation and prosecution of contemporary Chinese criminal organizations through the study of one major human smuggling case: the trial of “Sister Ping.” Data were obtained from media reports, court documents, and from interviews with parties familiar with the case. It is argued that modern human smuggling groups such as the one run by Sister Ping are informal and decentralized organizations against which the RICO statute may be of little use.

Children's Rights and the Politics of Food: Big Food Versus Little People

This article traces the battle in the United States during the Obama administration, continuing into the Trump administration, to protect children's rights to food. It explores barriers to development of sound, science‐based food policies, including the refusal to recognize food as a human right, anti‐science denialism, hostility toward government regulation, and relative powerlessness of children. It points to the role of a “Big Food Pyramid” composed of powerful food industry and large scale distribution and marketing interests in blocking sound policies in prenatal and infant nutrition, school lunches, SNAP and WIC, the marketing to children of high fat and fructose‐laden products, and campaigns to increase youth fitness. While predicting a continuing assault at the federal level on children's rights to safe and healthy foods, the article highlights the positive role of consumer demand in shaping marketing, labeling and production of food and opportunities for leaders in the food industry and in government at local, municipal and state levels to continue the battle for sound food policies.     

The information infrastructures of 1985 and 2018: The sociotechnical context of computer law & security

This article identifies key features of the sociotechnical contexts of computer law and security at the times of this journal's establishment in 1985, and of its 200th Issue in 2018. The infrastructural elements of devices, communications, data and actuator technologies are considered first. Social actors as individuals, and in groups, communities, societies and polities, together with organisations and economies, are then interleaved with those technical elements. This provides a basis for appreciation of the very different challenges that confront us now in comparison with the early years of post-industrialism.     

The enforcement of anti-human trafficking law in South Africa: a case of an aircraft without a pilot

This article evaluates the effectiveness of current law enforcement efforts in combating human trafficking in South Africa. Based on a broader empirical doctoral study, it was discovered that as currently structured, the South African Police Service (SAPS) cannot be effective in the enforcement of anti-trafficking law in the country. Combating human trafficking among other things, requires a formidable law enforcement agency that is explicitly proficient in the modus operandi of the crime; the sophisticated cum dynamic nature of the forces and factors that fuel the illicit trade in a vacillating milieu. Unfortunately, academic writings on this observable position in South Africa are scanty. Therefore, an article of this nature is not just timely but urgent. Findings from the study (among others) revealed that a wide-gap exist in the capacity of the SAPS, and other relevant stakeholders, to enforce anti-trafficking law in the country. Hence, it was recommended that for a result-oriented approach, South Africa needs to establish a specialised law enforcement agency distinct from the regular police structure to enforce anti-trafficking law in the country.     

Human Trafficking and Slavery in Australia: Pathways,Tactics, and Subtle Elements of Enslavement

Human trafficking and slavery are heinous crimes that occur in all regions of the world. Victims are frequently trafficked or enslaved using tactics involving force, threats, or coercion. Perceptions of human trafficking and slavery often involve images of slaves, bound and shackled, kidnapped, and raped. Anecdotal evidence from Australia suggests that victims of human trafficking and slavery in Australia do not fit this stereotypical image. This article sets out to explore the more subtle elements of human trafficking and slavery in Australia through a review of human trafficking and slavery court case reports. The article presents summaries of case reports for the period 2004–2014 and identifies tactics of enslavement and pathways into slavery. The article also considers the implications—for identifying victims and combating human trafficking—of the more subtle methods of enslavement that occur in Australia.