Duels,Real and Fancied

The discussion on "The Defense Counsel: Rights and Problems" has produced serious interest in the legal community. Today a prominent jurist, Mikhail Petrovich Maliarov, State Legal Counselor 1st Class, participates in the "LG Discussion Club." Maliarov is the author of many articles and the coauthor and editor of a number of law textbooks. He presently holds a responsible post in the USSR Procuracy.     

Moral questions,legal answers,and biotechnological advances

Moral failing is usually construed as a personal flaw, but there is another construction: where morals fail people, where our moral precepts are silent. The author of this article argues that this happens nowadays where technological advances, such as genetic engineering in medicine, raise moral questions but get legal answers. By responding to the legal issues involved, the moral questions are pre-empted. This results in answers drawn from legal categories, often with commercial perspectives, but misses the larger moral dilemma.     

Ricketson and Ginsburg: Berne baby, Berne...

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

International Copyright and Neighbouring Rights: The Berne Conventionand Beyond 2nd Edition By Sam Ricketson and Jane Ginsburg, 2006,Oxford University Press Price: £225, Hardback, ISBN: 0-19-825946-8pp lxxxvii + 1540, 2 Volumes   The praise     

The right,the good and the jurisprude

Legal philosophy must be based on a set of substantive political values about such fundamental matters as the nature of the political community and the meaning of human freedom. This general thesis is illustrated by the analysis of moral discourse about the justification and limits of liberty-rights and equality-rights.The most effective way of arguing about the liberal conception of individual liberties (consistent with the Millian Harm Principle) is by recourse to the priority of the right over the good. But this conception is little more than a restatement of the Harm Principle itself hence, a more fundamental justification for it is required. This can be provided by a substantive conception of equality of individuals as moral agents who are capable of choosing, pursuing and changing their own conceptions of the good, within the parameters of avoiding harm to others.In turn, the basic moral problem about equality-rights concerns the test of the discriminatory character of legal classifications. The insistence that immutable personal characteristics, such as race and sex, are prima facie discriminatory, can only be explained by an appeal to a notion of positive freedom: individuals should not be adversely affected by those characteristics over which they have no control.There is a significant parallelism in the discourse about liberty-rights and equality-rights: one is a mirror image of the other. This indicates that jurisprudence is incomplete without those more fundamental conceptions, such as equality of moral agents and positive freedom, and that a proper discourse about human rights is derivative from the ideal of a just society.I am grateful to Martin Krygier, Grant Lamond and David Mason for their helpful comments.     

Investigating latent trait and life course theories as predictors of recidivism among an offender sample

This research used data from a drug treatment follow-up study to investigate the predictive utility of factors associated with latent trait and life-course models of criminal offending among a sample of serious drug users. A sample of 577 incarcerated drug offenders was interviewed prior to release from prison and again at six and eighteen months after release. Structural equation models were used to investigate to what extent sensation seeking and aggression scales predicted marriage, employment, or enrollment in an educational program and, in turn, how both sets of variables predicted drug use and arrest. Results indicated that while aggression was negatively associated with social bonds and positively related to drug use and arrest, sensation seeking was nonsignificant in predicting bonds and negatively associated with drug use. Employment and school were negatively associated with drug use and arrest, while marriage was nonsignificant.     

Nietzsche,Critique and the Promise of not Being Thus...

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - A close allegiance to `critique' differentiates critical legal studies from other approaches...     

Commentary: Promising answers,and the next generation of questions

The papers in this special issue will be immensely valuable in taking forward the agenda of research, practice and theory construction in the field of offender rehabilitation. Some have consolidated existing knowledge in specific areas and analysed its potential implications. Others have identified the key points at issue in the debate between different models of the rehabilitation process. Still others have explored or developed a number of relatively neglected matters, including the delivery of treatment within a coercive framework; the role of labelling in change and desistance processes; the importance of the therapeutic alliance in offence-focused work; and reconceptualisation of the responsivity principle within the framework of therapeutic jurisprudence. The present paper extracts some further principal themes from the spectrum of issues raised. Discussion of these is grouped under the four headings of theory construction, evidence accumulation, practical implementation, and ethical and political dimensions.     

The good, the bad, the ugly, and the Colombian peace plan

Among the many wars thatColombia is fighting, there are two that itis definitely losing – those forgovernment legitimacy and against poverty.Although the country has always shown anearly infinite capacity to turn itselfaround, its traditionally praised democracyshows fresh signs of erosion that lookalmost impossible to reverse. With solidinstitutions no longer standing, theguerrillas, the paramilitary, the corruptjustice system, and the drug producerscontinue to thrive like perennial weeds.Massacres, bombings, kidnappings and thedestruction of infrastructure continue toproduce a devastating effect on theColombian psyche. The good, the bad and theugly mix together in a pitiable realismbetween civil society and state. Theoutcome is poverty, dissatisfaction, andlack of legitimacy and hope.     

Parliamentary questions in the European parliament: Representation,information and control

Parliamentary questions and the membership of the European Parliament have both remained under‐researched. This article redresses the deficit by using a content analysis of written questions to analyse the behaviour of MEPs. Since tabling a question is one of the last formal rights of the backbencher, the study of parliamentary questions may be regarded as a particularly useful tool for increasing our knowledge of the way that MEPs understand their role as representatives. First the formal rules, function, and importance of parliamentary questions are explained. The following dimensions of questions are analysed: the questioning activity of MEPs, party groups, and national delegations; the issues MEPs raise in their questions, and the territorial dimension of the questions.     

Treatment manuals: The good,the bad and the useful

Abstract

This paper offers a commentary on the debate between Marshall and Mann on the desirability and merits of treatment manuals in the treatment of sexual offenders. Marshall offers a view of manuals as restrictive to clinical practice and as stifling to clinical innovation. Mann takes the position that manuals are a vital component in effective correctional practice. The commentary suggests that these contrary views are understandable: Marshall takes a clinical perspective and advocates best practice; Mann speaks from a realist forensic perspective in which manuals offer a practical means to deliver treatment on a large scale within prisons and probation. Of course, both positions have their merits and it is suggested that the two are perhaps not irreconcilable if the skills of the practitioner and model of treatment delivery are taken into account.     

Real Property, Spontaneous Order, and Norms in the Gold Mines

This article contributes to the current debate about why people follow the law even when they are not subject to legal sanctions, as when there are no police and little danger of a lawsuit. Most recent scholarship in this area takes the form of norms theories, suggesting that social norms rather than laws shape behavior and that deviations from the norm are punished by either social or internal sanctions. Robert Sugden, however, proposes that order may develop "spontaneously" in the many areas of life where abiding by the rules minimizes the risk of costly confrontations with others and is thus in the interest of all parties. When this is true, the threat of little or no sanctions plays no role in regulating behavior. This article tests Sugden's theory against a simple property system, that of the California gold mines, in which individual miners held small claims subject to strict work requirements. The evidence of eyewitnesses shows that the stability of the regime did not depend on norms, but on the reasonable prediction that other claim holders would themselves stand up for their rights under the local mining code. Disputes about the rules and their application were submitted to arbitrators, whose decisions were accepted by the parties and did not need to be enforced. The California experience thus provides an example of a stable property regime for which game theory has a more satisfying explanation than do any of the norms theories.     

Patent first, ask questions later: morality and biotechnology in patent law

This Article explores the U.S. "patent first, ask questions later" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on "anything under the sun made by man," and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created "moral utility" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not "useful." The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the "patent first" approach, and considers the benefits and disadvantages of the "ask questions first, patents later" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.