Retribution,Restitution and Revenge

Law and Philosophy -     

Competitive Liberalization,Competitive Imperialism,and Intellectual Property

Aggressive pursuit of free trade agreements (FTAs) and customs unions (CUs) by major and minor trading powers alike challenges the conventional wisdom in favor of such pursuit – competitive liberalization. An equally plausible explanation for an active bilateral and regional trade agreement policy, one which effectively de-emphasizes multilateralism, may be competitive imperialism. The protection and enforcement of intellectual property rights is one area in which new provisions, going beyond multilateral rules, are being negotiated and written into FTAs and CUs. Such provisions may yield insights into which characterization of bilateralism and regionalism – competitive liberalization or competitive imperialism – is more apt. Rice Distinguished Professor, The University of Kansas, School of Law, Green Hall, 1535 West 15th Street, Lawrence, KS 66045-7577, USA. Tel. +1-785-8649224. Fax. +1-785-8645054. www.law.ku.edu. J.D., Harvard (1989); M.Sc., Oxford (1986); M.Sc., London School of Economics (1985); A.B., Duke (1984). Marshall Scholar (1984-86). Member, Council on Foreign Relations, Royal Society for Asian Affairs, and Fellowship of Catholic Scholars. Author, Modern GATT Law (Sweet & Maxwell 2005), International Trade Law: Theory and Practice (2nd ed. 2000, 3rd ed. forthcoming 2007-08), and Trade, Development, and Social Justice (Carolina Academic Press 2003). I am thankful to my Research Assistant, Mr. David R. Jackson (B.A., George Mason University, 1992; J.D. Class of 2007, University of Kansas), for his indispensable help on this work. I also am grateful to Dr. Mohammed El Said, University of Central Lancashire (UCLAN), for his consistent support and friendship, and for what he has taught and continues to teach me about international trade and intellectual property.     

Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again

A solicitor, when drafting a will, can owe a duty of care in tort to the intended beneficiary of a bequest under that will. The Court of Appeal has recently confirmed that where a solicitor has misdrafted the will, the intended beneficiary can sometimes rectify it, and recover the intended gift. The pattern of this rectification is restitutionary, raising the question analysed in this article of whether an intended beneficiary can have a direct personal action in restitution to reverse the unjust enrichment of an unintended recipient. It seems that, though fraught, such an action may indeed in principle lie.     

Damages for Breach of Contract: Compensation, Restitution and Vindication

In this article we examine the role which vindication playsin contract damages. Vindication describes the making good ofa right by the award of an adequate remedy. We argue that, whilethe primary purpose of compensation is to provide an indemnityfor loss, an award of compensatory damages will neverthelessgenerally vindicate the right to performance of the contract.We go on to consider a distinct measure of damages, vindicatorydamages. These, we argue, are neither compensatory nor restitutionary,neither loss-based nor gain-based: they are a rights-based remedy.We then identify various situations in which the courts maybe seen to have awarded what are, in substance, vindicatorydamages. We conclude by considering the benefits which may followfrom recognition of the availability of vindicatory damagesas a contract remedy.     

Imperialism, crime and criminology: Towards the decolonisation of criminology

Cohen (1988) once concluded that it is ironic that critics in the West are identifying forms of social control that are more traditional in the Third World as better alternatives to the neo–classical and positivistic repressive traditions in the West while some suggest that what they found malignant in the West should be exported to the Third World as benign. In this paper, I am going beyond Western crime control models to examine the character of criminology itself as an imperialist science for the control of others.     

Restitution in America: Why the US Refuses to Join the Global Restitution Party

In the past generation, restitution law has emerged as a globalphenomenon. From its Oxbridge home, restitution migrated tothe rest of the Commonwealth, and ongoing Europeanization projectshave brought the common law of restitution into contact withthe Romanist concept of unjust enrichment, further internationalizingthis movement. In contrast, in the United States, scholarlyinterest in restitution, in terms of books, articles, treatises,symposia and courses on restitution, is meager. Similarly, whilerestitution, equity and tracing cases receive considerable treatmentat the highest levels of the English judiciary, US courts seemuninterested in these issues, rarely producing the theory-ladenopinions that have become quite common in the House of Lords.The situation is particularly curious because restitution isgenerally thought to be the invention of late nineteenth-centuryAmerican scholars. This article explains this divergence. Iargue that the Commonwealth restitution discourse is largelya product of pre- or anti-realist legal thought which generatesscepticism within the American academic-legal establishment.The article identifies the two dominant camps in American privatelaw thought—left-leaning redistributionalists and thecentre-right legal economists—and shows that neither hasany use for the Commonwealth's discourse. I conclude by analysingthe emerging drafts of the Restatement of Restitution and forecastthe future of American restitution law.     

A Humanist Foundation for Restitution

Abstract
This paper makes a case for an ethical underpinning for restorative justice. This approach is developed from a neo-Aristotelian perspective. It adapts the conceptual framework of Alasdair MacIntyre for the articulation and resolution of epi-stemological crises in traditions of enquiry, to the task of providing a critical and analytic framework for considering the crisis of rationale and practice in the contemporary criminal justice-penal archipelago. The author argues that Restitution, conceived in neo-Aristotelian terms, provides a resolution of that crisis. Finally, he foreshadows a debate to be had between the neo-Aristotelian position, and that of Critical Theory on the issue of legitimizing Restitution.     

The Role of Victim-Related Factors in Victim Restitution: A Multi-Method Analysis of Restitution in Pennsylvania

Mandatory statutes do not always produce change, but a 1995 Pennsylvania statutory change making restitution mandatory dramatically increased the proportion of cases in which restitution was imposed. There are three possible reasons for this generally successful implementation: (a) judges agreed with the victim-centered goals of the statute, (b) there were mechanisms in place to implement the goals of assisting victims, and (c) there was a context supportive of victims that made it easier to follow the law. Two studies investigated these possible explanations. First, a statewide survey of trial court judges suggested that they agreed with the statute's goals of compensating victims. Second, hierarchical logistic models of 55,119 statewide restitution-eligible decisions indicated that a victim-related contextual factor, the nature and location of the victim/witness assistance office, was significantly related to the imposition of restitution, although a more general contextual factor relating to funding for victim programs had only small effects.     

关于恢复原状、返还财产的辨析

恢复原状、返还财产经常被分别适用在若干民法制度中 ,恢复原状在我国现行法上存在着五种类型 ,含义各异 ;返还财产存在着七种类型 ,含义不同。     

从“非正式帝国主义”到“法律帝国主义”:以近代中国的境遇为例

近代国际法理论框架下的非正式帝国主义,由最初的自由贸易模式扩展至政治、司法等诸般间接控制样式。在非正式帝国的塑造中,合乎国际法规范的条约具备去疆界化与再疆界化的意义,即破除正式领土帝国的堡垒,重建非正式帝国的藩篱。法律无疑是实现非正式帝国主义不可或缺的重要支撑,而它本身也成就为非正式帝国主义的一种典型形式——法律帝国主义。以近代中国的境遇为例,法律帝国主义所表达的,正是在政策指引之下,借助条约规定方式,以治外法权为基本实践手段,通过司法机构的跨域构建以及法律职业人士的身体力行,以最终达成西方法播散的整体过程。对此,我们应有清醒的认识。     

Imperialism and the Crisis of Bourgeois Municipal Self-Government

The role of the imperialist state as bastion of the capitalist system and implement of international reaction has grown tremendously under the conditions of the general crisis of capitalism. This state assimilates the new features of imperialism that have arisen under the impact of imperialism's inherent contradictions and of its efforts to survive and adapt to the struggle between the two systems and to the revolution in science and technology. State regulation of capitalism (regulation which responds to the interests of big capital), the offensive against bourgeois democracy, and the intensification of repression (combined with implanting reformist illusions and attempting to "integrate" the workers' movement within the framework of capitalism) serve as means for the self-preservation of contemporary capitalism. (1)     

Imperialism, race, and therapeutics: the legacy of medicalizing the "colonial body"

The era of high colonialism in South Asia coincided with the period when eugenics came to dominate much of the scientific discourse in Europe and America. Such attitudes were naturally transplanted into the colonial world where medical researchers helped to establish a pathological "difference" between Europeans in India and the colonial "Other," thus creating a medical discourse dominated by racial segregated treatment regimes. With the growth of trans-national transfer of scientific knowledge, this colonial "research" began to underpin racially constructed medical practices wherever they occurred.