In The Shadow Of Terror: The Illusive First Amendment Rights Of Aliens

Despite a sustained period of peace and prosperity in the United States, Congress has enacted considerable anti-terrorism legislation, which-like past laws based in fear of foreign threats to the national security-erodes freedom of expression. This article provides a political, historical and legal background before examining this legislation and its application in cases affecting the rights of First Amendment claimants. The article finds that most courts, including the United States Supreme Court, have tended to use a formulaic strict scrutiny analysis of the legislation that endorses the government's position that, for example, the Antiterrorism and Effective Death Penalty Act of 1996, is a content-neutral response to the important interest in reducing the threat of terrorism. The article argues that the courts instead should adopt an analysis based on the real intent and discriminatory effects of the law to find it is impermissibly content based, overbroad and vague.     

The Economics of the Bill of Rights

We elucidate, connect, and synthesize the literature that employseconomics to study the individual rights and freedoms protectedby the constitutional amendments comprising the Bill of Rights,especially as they relate to crime. Economics is uniquely suitedto studying decisions involving tradeoffs, and each of the amendmentsrequires tradeoffs. Emphasizing these tradeoffs allows us todiscuss the constitutional rights in terms of "more or less,"as opposed to taking an absolutist approach. We find that theeconomic literature on the amendments of the Bill of Rightsis vibrant and growing, and that viewing the amendments withinthe framework of economics is highly useful.     

论刑法修正案--兼谈刑事立法权之划分

刑法修正案和刑法典 ,是形式上的同一和内容上的替代关系 ,刑法修正案在形式上和内容上均取得了刑法典的效力 ,但是修正案的通过主体是全国人大常委会 ,而刑法典的通过主体是全国人民代表大会 ,二者的通过主体发生错位 ,因此 ,全国人大常委会无权以修正案的方式修改刑法 ,由此揭示出一个隐藏的问题 :由全国人大常委会修改和补充刑法 ,在根本上违反宪法 ,基于此 ,笔者对刑事立法权限的划分提出合理的建议。     

Federalists in the Attic: Original Intent, the Heritage Movement, and Democratic Theory

Although the United States is often criticized for its lack of historical consciousness, historicity provides a compelling rhetorical trump in constitutional argument, particularly according to advocates of original under-standing jurisprudence or "originalism." Originalism has also proven to be quite popular as a constitutional position, especially in public discourse outside academe and the courts. I argue that originalism's appeal derives from Americans'interest in heritage. Using the literature on public history, memory, and cultural studies to distinguish the cultural phenomenon of heritage from history proper, I argue that originalism, like heritage, offers the possibility of an immediate and authentic encounter with the past tied to a critique of modernism as both antidemocratic and inauthentic. Originalism portrays the federal period as a special moment of civic unity, whose virtues have been preserved by the larger public, but have been eroded among elites by modernity.     

《最高人民法院关于无单放货规定》所涉重要问题之评析

无单放货现象大量发生严重危害了我国的航运秩序、贸易秩序和提单制度,而我国长期以来对此缺乏专门的法律进行规制.为此,最高人民法院于2009年2月出台了专门针对无单放货的司法解释,即<最高人民法院关于无单放货的规定>(以下简称<规定>).本文对<规定>关于承运人无单放货责任性质,<规定>关于承运人无单放货抗辩事由,<规定>关于无单放货行为归责原则,<规定>关于无单放货赔偿范围和责任限制丧失,<规定>关于无单放货诉讼时效等若干重要问题进行了评析.文章既分析和肯定了<规定>的重要作用和价值,又指出了<规定>所存在的一些疏漏,进而提出了一些具体的完善建议,从而期望为我国海上贸易事业的发展就尽一份绵薄之力.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

私有财产权修宪问题研究

私有财产权在我国现行宪法中仅被视为一项国家的基本经济政策,未规定为公民的基本权利,地位错置,这与当今世界各国立宪潮流不符。将私有财产权规定为我国公民的一项基本权利,是发展社会主义市场经济的客观需要和建设社会主义法治国家的内在要求,但我国宪法不宜规定“私有财产神圣不可侵犯”。修改我国宪法时,应当在“公民的基本权利和义务”一章中规定“财产权不得侵犯”,并规定相应的限制和征用补偿条款。     

Constitutional Rights in the Irish Home Rule Bill of 1893

In 1893, Prime Minister Gladstone introduced the second Irish home rule bill in parliament. The bill broke with tradition in Britain and the empire, as it included provisions from the bill of rights of the United States. Its significance was clear at the time: it was debated for nine days in the committee stage and, with one minor amendment, it remained part of the bill that passed the Commons. However, the bill was defeated in the Lords and, at least in the United Kingdom, bills of rights were dismissed as unnecessary or detrimental to sound governance until well after the second world war. This article therefore tries to understand how this early bill of rights was regarded at the time. Who suggested, or demanded, its inclusion? How did they expect it to be applied? And how did the debate reflect and influence thinking about constitutional law in Britain and the empire?