Explaining Partisanship on Special Rules in the Postreform House

Informational, distributive and partisan theories offer competing interpretations of the role of restrictive rules in the US House. Empirical tests in this literature focus almost exclusively on the amendment restriction portion of special rules, treating open rules as friendly and restrictive rules as unfriendly to the minority party or chamber as a whole. Oddly, however, there is a significant amount of conflict - partisan conflict in particular - connected with open rules. This suggests that the structuring of amendment possibilities cannot be the only relevant feature of special rules and that an exclusive focus on amendment restrictions might cause analysts to underestimate the importance of partisanship in the rules process. We find that partisan conflict on special rules results not only from the restrictiveness of the rule, but also from specific types of waivers (especially blanket waivers and waivers protecting legislative language in appropriations bills) and other under-studied features of special rules (such as time caps and pre-print requirements).     

驰名商标法律保护的限制规则

在充分肯定驰名商标特殊保护的基础上,从其他商标权利人以及公共利益的视角阐述对驰名商标进行限制的必要性,针对驰名商标权利人的权利滥用,重点提出了在权利认定和特殊保护中的限制措施具有重要意义.只有做到平衡两种利益主体的权利,才能更好地体现商标法的立法意图,进一步促进市场良性竞争秩序的形成.     

The Role and Future of the Upper House in Ireland

Ireland is a highly centralised unitary state and thus lacks the standard 'federal' justification of a Senate as a place in which the interests of the constituent states are represented. Nonetheless, Ireland has a Senate under the 1937 Constitution, comprising three types of senator: those indirectly elected from 'vocational' panels, those directly elected by graduates of the two traditional universities and those nominated by the Prime Minister. Its powers are extremely weak. Several attempts to reform the Irish Senate have failed, in large part as a result of an unwillingness of the political elite to change a situation in which politicians who are unsuccessful in election to the lower house can find a political home pending the next election. There does however remain a potential future role for the Senate - if it were to be directly elected and given important jobs to do such as the oversight of EU legislation.     

论诉讼程序在规则演进中的作用——兼论市场经济对诉讼程序的要求

在制度经济学的理论视野中,规则演进大致遵循着从习惯到习俗,再到判例或成文法的逻辑。而在从非正式的习俗规则到正式法律规则的转变过程中,司法活动的作用非常关键:司法活动确认了法律的存在、强化着人们关于法律的认识,而且一点一滴地改变着法律。驱使非正式的习俗规则演变为正式的法律规则的,是复杂社会对一种稳定的预期基础的要求,这一点在西方市场经济的发展过程中体现的尤其明显。市场经济的发展史同时还表明,相对于法律规则的系统阐述而言,一种完备的诉讼程序是发展市场经济更为关键和必要的条件。     

Explaining Seat Changes in the U.S. House of Representatives, 1950–98

Abstract: Recent U.S. House elections have challenged existing models of congressional elections, raising the question of whether or not processes thought to govern previous elections are still at work. Taking Marra and Ostrom's (1989) model of congressional elections as representative of extant theoretical perspectives and testing it against recent elections, we find that the model fails. We augment Marra and Ostrom's model with new insights, constructing a model that explains elections from 1950 to 1998. We find that, although presidential approval ratings and major political events continue to drive congressional elections, the distribution of open seats must also be taken into account.     

法律、民生与民间规则——兼论两岸交流制度中民间规则的作用

法律是社会交往和社会需要的产物,因之,法律也是主体交往中日常生活的公共产品。它不仅作用于人们日常的物质生活,而且也作用于人们的精神生活。更重要的是,法律作为正式制度,还缔造着人们的制度生活。但法律的规定并不是完全自足的,一方面,需要关注作为非正式制度的民间规则的作用,另一方面,当法律规定有所遗漏,或者法律规定对公民的日常生活不能调整、规范时,民间规则对救济法律的不足,就可能会派上用场。甚至即使法律对相关社会关系有所规定,在实践中也免不了法律和民间规范相互交叠地发挥作用。基于这种认识,在两岸有关民生的交流中,应当把民间规则纳入保障两岸民生、促进两岸往来的重要社会因素中。     

Restrictive Covenants in Xanadu

Legal scholarship is naturally inclined towards explanations and justifications of contemporary law. In the case of restrictive covenants and building schemes this has led to a distorted perception of the historical record, as revealed in recorded case reports dating from the nineteenth century. It is argued that the restrictive covenant had its historical genesis not in a response to industrialisation and mass urbanisation, but in the developments of resort towns in the eighteenth and early nineteenth centuries, as a response to the needs of land developers. Furthermore, it is argued that a better historical understanding of these origins illuminates contemporary problems concerned with the adaptability of law and the potential roles of law in development.     

降临在民宅内的恐怖

美国警察在执行拘留和逮捕任务时,曾多次选错对象或误闯不该进入的民宅,这无疑给执法的正义性蒙上了阴影。     

“人本”语境下的规则冲突与冲突规则

"人本相同"是国际社会公认的普世价值,但事实上的"人本不同"造成了各国民商事法律规定的冲突。"人本"语境下的冲突法应尊重人的价值,维护人的权利,重视人的发展,以促进全球范围内民商事活动的顺利进行、物质资源的合理配置、人类社会的和谐共存。我国《涉外民事关系法律适用法》以"人本"思想为价值导向,多采双边冲突规则,坚持内外法律平行,注重冲突法的实质正义,平等保护内外国当事人的合法权益,体现了"以人为本"的科学发展观,为构建和谐国际民商事秩序保驾护航。     

Rules of Power and the Power of Rules

Abstract
The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes . For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision-making, one that quite deliberately insulates the decision-taker from considerations of what would be in the circumstances the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision-making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision-making. Schauer canvasses the claims of what he calls "presumptive positivism" to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares "presumptive positivism" with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement.     

优惠性原产地规则中的累积规则研究

作为优惠性原产地规则的累积规则,已在普遍优惠待遇制度和优惠贸易安排中广泛运用,其作用也已引起世界各国的广泛关注,并在全球引发了激烈的争论。累积规则有五种类型,具有双重作用。用GATT/WTO现有的规则分析,会出现一个悖论,即允许累积会违反GATT/WTO的规定,不允许累积也会违反GATT/WTO的规定。国内外广泛的争论表明,在较长的时间内,只要优惠性原产地规则存在,限制性原产地规则就会存在,累积规则就会存在。中国在优惠贸易安排中的原产地规则中对累积规则的运用还很不充分,应充分借鉴泛欧模式中的实践,更灵活充分地运用累积规则,以更好地促进区域经济的发展。     

员工竞业禁止研究

员工竞业禁止之理伦基础是普通法上雇员之默示义务及现代产业扩张、产业竞争压力增大而形成的客观环境。员工在职竞业禁止在普通法系中表现为雇用期间之约定俗成,即雇主忠心事主是其义不容辞的默示义务;员工离职竞业禁止制度的设计,需权衡用人单位利益与劳动者就业权之间的冲突。     

立体商标注册的限制性条件

立体商标系我国现行商标法新增的保护种类。将立体商标作为新的商标注册的客体后,会出现以往在平面商标注册中不曾有过的问题。立体商标在商标注册的限制性条件方面具有某种特殊性,需要结合国外的有关理论学说和法律实务加以认识,并在今后的立法中加以完善。     

Explaining fear of crime in Queensland

A model to explain fear of crime in Queensland is developed and fitted to data from the 1991 Queensland Crime Victims Survey. Fear of crime is measured from the answers to the question about respondents' feelings of safety when walking alone in their area after dark. The results suggest that factors such as gender, age, poverty, educational level, labor force status, level of incivility in the area, perceived amount of crime in the area, and neighborhood cohesion all make an impact on fear of crime in a way that is consistent with the theory. The results also show that fear of crimein Queensland is explained by very concrete factors that can be subject to intervention and policy formulation by relevant bodies.The views expressed in this paper are those of the authors and do not necessarily reflect those of the Government Statistician's Office or the Queensland Government.     

Explaining Majority and Minority Trust in the Police

This article tests the contribution that social capital theory, performance theory, and the procedural justice-based model can make towards explaining the trust of majority and minority group members in the police. The central research questions are: (1) do the same factors determine their levels of trust? and (2) are the effects parallel? To answer these questions, we carried out regression analyses on data collected from majority and minority group members living in Belgium (960 face-to-face interviews). The results show that, although the three theories offer explanatory elements for members of both majority and minority groups, the explanation of their trust in the police is not identical. Implications for research and theorization are discussed.