论我国司法鉴定人制度

全国人大常委会《关于司法鉴定管理问题的决定》以及最高人民检察院、公安部和司法部关于鉴定机构和鉴定人管理的规范性文件之颁布实施,基本实现了对鉴定人行政管理的制度化和规范化。但初始建立的司法鉴定人制度并非至臻完善,其中的某些方面仍需进一步深思。从司法鉴定人法定资格的局限性到鉴定人法律义务的具体承担等七个方面的问题探讨,将有助理解或进一步完善现行的司法鉴定人制度。     

The Imperial Judiciary Meets the Impotent Congress?

The continuing debate over an activist judiciary frequently overlooks the issue whether majoritarian institutions such as Congress can be the principal policy makers for a democracy as well as whether they ought to be. An explicit comparison of the institutional capacities of the Congress and federal courts on abortion funding suggests that Congress is capable of developing representative, responsible, and educative policies. However, a retreat by the "Imperial Judiciary" from an activist posture would not necessarily transfer power from the courts to the Congress but from the courts to unelected bureaucracies within the Congress and the Presidency.     

“人大主导立法”原则下的立法体制机制重塑

"人大主导立法"是指在立法中应由人大把握立法方向,决定并引导立法的内容、原则和基本价值取向。"人大主导立法"既是党的重要主张,也已成为一项立法原则,是我国基本立法制度的强力回归。而要贯彻落实"人大主导立法"原则,则需要对我国的立法体制机制的相关方面进行更为科学合理的重塑,包括人大主导立法与党领导立法的关系定位、全国人大与地方人大立法关系机制重塑、人民代表大会与人大常委会立法关系机制重塑、人大与政府立法关系机制重塑以及人大主导立法与公众参与立法关系机制重塑。     

Patenting human beings: do sub-human creatures deserve constitutional protection?

The availability of patents for genetically altered animals raises questions about the patentability of human beings. Genetic research will produce beings who fall halfway between what we currently think of as "animal" and "human." It is unclear on which side of the legal line these creatures will fall. In April 1988, Congress revised the Patent Act with a statement that human beings are not to be considered patentable subject matter. Congress, however, failed to supply a definition of the term "human being." A definition will clarify the legal status of sub-human creatures. The author addresses this problem and proposes a definition of "human being" as an amendment to the Patent Act.     

DharmakĪrti and Tibetans onAd \underset{\raise0.3em\hbox{ Śyānupalabdhihetu

The present article was first prepared for a panel on Tibetan developments of Dharmakrti's thought, which was part of the International Association of Tibetan Studies Congress in Oslo 1992. My thanks to Ernst Steinkellner and Georges Dreyfus for comments and to Helmut Tauscher for photocopies of 'U yug pa's text.     

CONGRESS AND CAPITAL PUNISHMENT: An Exercise in Symbolic Politics

Even when federal authorities were legally empowered to impose a death sentence, the sanction was rarely carried out. Between 1930 and 1976, there were only 33 such executions. During the past decade, bills, both imposing and abolishing capital punishment, have been introduced repeatedly in the U.S. Congress. Furthermore, certain members of Congress have demonstrated intense interest in such efforts. The continued debate and interest is better explained by the symbolic rather than tangible components of such legislation. This article examines four aspects of the symbolic component of federal death penalty legislation: reassurance function, moral-educative function, model for the states, and the deterrence debate.     

Access to medical care for HIV-infected individuals under the Americans with Disabilities Act: a duty to treat.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). This Note examines the legislative history of the ADA and uncovers Congress's intent to impose a duty on health care providers to treat people with disabilities unless an individual poses a "direct threat" to the health or safety of others. This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on health care providers to give care to people infected with HIV who qualify under the statute. This Note concludes that while the "direct threat" exception may lessen the impact of the ADA, those infected with HIV should enjoy greater access to health care than ever before.     

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.     

Congress, health care, and congressional caucuses: an examination of the Diabetes Caucus

Caucuses have become a critical feature of the congressional landscape, yet are neglected in the literature on health-policy making in Congress. The principal goal of the article is to use the Diabetes Caucus as a case study to highlight this significant yet underappreciated political actor in the health-policy realm in Congress. The exploration, which draws on information gathered from thirty-two interviews with members of the Diabetes Caucus and their staff, will contribute to an increased understanding of both Congress's operations in the health area and the potential impact of caucuses on health-policy making. The article emphasizes particular characteristics relating to the membership and objectives of the Diabetes Caucus. In addition, the study stresses that the group had the requisite political momentum to achieve legislative successes when a policy window opened in the 105th Congress because it served much like, in the terminology of John Kingdon, a "policy entrepreneur".     

Roe v. Wade is constitutionally unprincipled and logically incoherent: a brief in support of judicial restraint

This "amicus curiae" brief was submitted by the Center for Judicial Studies and 56 members of Congress. They were concerned that "Roe" expands powers that belong to Congress and the states into the realm of federal government. Part I of the brief dealt with Missouri's claim that the laws that were at issue in "Webster" were permitted under "Roe" and shouldn't have been made invalid by lower courts. Most of the brief was in Part II. The thrust of it was that "Roe" was not based on any principle and is incoherent internally; "Roe" said that a privacy right existed under the US constitution. However, "Roe" didn't define this right of personal privacy. "Roe" cited a "line of decisions" to prove this point. However, none of the cases that "Roe" cited pretended to be based on the "right to privacy." They dealt with other issues. "Botsford" was said to be the beginning of the constitutional privacy right. It dealt with a "common law rule of evidence," not a right that was in the constitution. Therefore, it did not define the privacy right. "The process by which "Roe" moved from privacy to abortion was unfounded by judicial fiat." "Roe" said that it was protected by "the compelling interest standard," but did not give a reason why this was so. In "Roe," the woman';s interest in getting an abortion was analyzed in medical terms. But when talking about the State's interest in protecting potential human life, medical considerations were not controlling. Part III of the brief asked that "Roe" be overturned because it said that "a privacy right to abortion" was "devoid of any linkage to the text or history of the constitution." "Roe" should be abandoned because its "inadequacies" are "basic".     

Protection of the Volga's Waters: A State Task

The concern of the Party and the state for protection of natural resources, including bodies of water, was emphasized once again at the Twenty-fifth Party Congress. In his Report to the Congress, L. I. Brezhnev, General-Secretary of the CPSU Central Committee, commented that today we have well-grounded legal provisions permitting purposeful conduct of the work of environmental protection. These juridical norms include, in particular, those of the decree of the CPSU Central Committee and the USSR Council of Ministers of March 13, 1972, "On Measures to Prevent Pollution of the Volga and Ural Watershed by Untreated Waste Waters," providing a set of measures whose implementation will make it possible by 1980 to totally eliminate pollution of the waters of "Russia's Main Street."     

Problems of Research EN Party History in the Light of the Decisions of the 22nd Congress of the CPSU

The 22nd Congress of the CPSU called upon all personnel in the ideological field to increase their activity in the communist education of the working people of Soviet society, and in shaping their scientific world outlook on the basis of Marxism-Leninism. In the new Party Program adopted by the Congress we read: "The Party poses the objective of educating the entire population in the spirit of scientific communism so as to give the working people a thorough understanding of the course and prospects of world development, enabling them to analyze correctly events within the country and on a world scale, and to build their lives consciously on a communist pattern." (1)     

The Legal Regulation of Invention in the USSR

Invention and scientific and technological progress. One of the main tasks before us in the development of the national economy of our country in light of the decisions of the XXVI Congress of the CPSU is increasing the pace of scientific and technological progress as a decisive condition for transferring the economy to a path of intensive development and raising the effectiveness of public production.¹ Scientific and technological progress is a dynamic and multifaceted process of improving all aspects of public production on the basis of science, technology, and the leading experience. Its essence consists in the fact that scientific progress joins technological progress in the single process of the scientific and technological development of society.²     

Warranted and Unwarranted Complexity in the U.S. Sentencing Guideline

The U.S. Sentencing Guidelines are highly complex because of both initial policy decisions and subsequent pressures from Congress and appellate courts. The two initial policy decisions that were largely responsible for this complexity were (a) basing guidelines on "relevant conduct" rather than on the offense of conviction and (b) specifying in detail the number and precise sentencing value of aggravating and mitigating factors. Given this initial bias toward specificity, it was inevitable that the complexity in the guidelines would become worse as Congress pressed for further distinctions and the Sentencing Commission responded to those statutory actions. The complexity of the U.S. Sentencing Guidelines has detrimental effects on both the perceived and actual fairness of the laws. Although statistical analyses indicate that the most complex guidelines (as indexed by the length of each guideline, the length of application notes for each guideline, and the number of amendments to each guideline) are also those that are most frequently used, there is also evidence that at least some of the complexity in the guidelines (the number of specific offense characteristics in each guideline and the number of cross references) is unwarranted.     

Limitations on an employer's right to discipline and discharge employees

An employer's prerogative to discipline and discharge its employees has been substantially infringed by the courts, state legislatures, Congress, and governmental agencies. In its recent Materials Research decision, the National Labor Relations Board has expanded the Weingarten principle by limiting the employer's ability to conduct investigatory and disciplinary interviews of nonunion employees. In addition, state courts and legislatures have begun to scrutinize the grounds for an employer's discharge of an employee, and Congress has statutorily prohibited the discipline or discharge of employees who "blow the whistle" on their employers under certain circumstances. This article will evaluate recent developments in this area of law and explore their impact on an employer's right to discipline and discharge its employees.     

Incrementalism and Policymaking On Television Violence

Since the early days of television, Congress has shown concern over violent programming, but has employed a limited range of strategies and taken few legislative actions to deal with television violence. The incremental model of policymaking, which predicts that most policy changes are likely to be small, offers some explanations for why this might be so. This article applies the incremental model to congressional activities related to television violence and offers some potential explanations for why Congress shifted from relying primarily on a " regulation by the raised eyebrow" approach for several decades to a more proactive, regulatory approach in the 1990s. Finally, the article argues that given the various competing interests at stake, the actions Congress has taken have been reasonable and appropriate, if not entirely effective.     

我国司法会计鉴定机构制度模式的评述

2005年全国人大会常委《关于司法鉴定管理问题的决定》颁布后,我国建立何种类型的司法会计鉴定机构得到了明确的答案。但如何建立却没有任何经验可资借鉴。针对这一问题,分析了＂集中型＂和＂分散型＂两种模式的优劣,并提出了建立＂混合型＂司法会计鉴定机构应注意的几个问题,为建立与我国现行司法体制相适应的司法会计鉴定机构,在理论上进行一些探讨。     

省级人大常委会参与合宪性审查的空间和机制

省级人大常委会参与合宪性审查,对推进我国合宪性审查工作体系化具有重要作用.自地方扩容立法以来,地方立法主体“数量多、能力低”的现状、地方立法的本土化趋向和宪法变迁共同增加了地方规范性文件的违反宪性风险.而现有的规范性文件备案审查制度因其固有体系缺陷,不足以促进合宪性审查的有效实现.在实定法层面,《宪法》《立法法》等相关...     

国家监察委员会的监察法规制定权限:三步确界与修法方略

全国人大常委会通过决定方式授予国家监察委员会监察法规制定权,形成了以人大立法权为核心且以行政立法权、监察立法权和军事立法权为补充的更优的“一元三系”立法分工体系,监察权也得到了极大丰富,进而有利于织密权力监督之网。当前的紧要任务在于明确界定监察法规制定权限,以在推进监察法律规范体系立体建设的同时保障监察法规制定权规范演进。利用“三维考察+三层掘进”的阐释模型耙梳可以发现,目前国家监察委员会既可以为执行监察法律、监察直接相关法和间接相关法的规定,单独或者联合其他国家机关进行执行性立法,也可以在遵守法律保留原则的前提下,就领导性管理事项进行创制性立法,还可以基于全国人大常委会的专门授权,就法律的相对保留事项和监督性管理事项进行授权性立法。接下来应当在《全国人民代表大会常务委员会关于国家监察委员会制定监察法规的决定》的基础上对制定监察法规的立法权限、形式和备审等内容作进一步规范,以备我国《立法法》修改之需。     

关于“公共利益”的界定模式

宪法关于“公共利益”的规定,需要在国家权力运行活动中具体化。如何将“公共利益”具体化呢?学界和实务界提出了三种基本模式。第一种是人大以“一事一议”方式界定“公共利益”,第二种是由司法承担对“公共利益”的最终界定,第三种是人大以列举式立法模式将“公共利益”具体化、固置化。第一种模式正确认识到界定“公共利益”属于权力机关的权限,但具体方式却不可行;第二种司法决定模式既缺乏实质合法性,又没有技术可行性;第三种模式在立法上虽有一定困难,但也有其他国家和地区成功经验可资,是实现宪法“公共利益”规定对公民权利保护和对国家权力制约的惟一现实可行之路。要在国家权力运行上界定“公共利益”,还必须解决目前我国“公共利益”泛化掩盖下的许多具体矛盾。