Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41     

Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes

The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions. Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application of legal rules to the facts of cases pending for judgments. The tension between the certainty and the “discretion” is universal for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable against the transitional nature of current Chinese society.     

司法调解与治理变革--以陕甘宁边区基层司法档案为中心的考察

司法调解是多元化纠纷解决机制的重要组成部分之一,而以陕甘宁边区为代表的革命根据地调解制度,则是当代中国司法调解的主要渊源。革命根据地的调解,不止是一项司法制度或者新型司法制度中的一个环节,它实质上更是一种治理模式,辅助革命政策的推行。通过荣誉、身份等象征资本重塑调解人,不断将革命伦理、法制融入新型调解规则体系之中,中国共产党借助司法调解,较好地实现了革命根据地社会治理模式的变革,有效消解了革命法制与社会旧俗之间的紧张关系,增进了普通民众对共产党政权的认同度。革命时期的调解尽管存在制度缺漏、行政导向等缺陷,但它对社会文化、习俗的娴熟运用,对社会组织、地方权威人物的组织吸纳,以及注重消弭社会冲突、维护邻里和睦的价值取向,实际上是中国共产党领导的治理变革在法治中的生动体现,也成为当下司法与社会治理可资取鉴的历史资源。     

The Time of Law: Human rights between law and politics

This article discusses the presuppositions and consequences of different forms in which successive Chilean governments have tried to ‚come to terms’ with a legacy of terror usually designated as ‚human rights violations’. Thus a political strategy centred in a body like a truth and reconciliation commission is compared to a judicial strategy of individualising perpetrators and punishing them according to the rules and principles of normal criminal law. Having distinguished these strategies, the article maps them onto two conceptions of human rights: one political (constitutive of the political community) and one legal (grounding actionable claims against others). The thesis is then defended that law cannot grasp the political meaning of human rights, and thus cannot grasp the full political meaning of terror.This paper belongs to a broader research project funded by the Chilean fund for Scientific development, FONDECyT (Projecto 1010461).     

Regulating balance sheet audit: A game theoretical analysis

Summary  The decision situation implicit to balance sheet audit is modelled as a game theoretical model and examined for its behavioural implications. Possible types of decisions are identified as Nash equilibria. The basic game model is characterized by an equilibrium in mixed strategies. Its properties are discussed in detail with respect to alternative scenarios of statutory audit. The regulatory propositions of separation between audit and consulting, on the one hand, and the rotation of auditors, on the other, are analyzed in the context of the game. It turns out that these measures may have contradictory effects on the quality of the balance sheet audit and it depends on the specification of regulatory details and the reaction of the agents whether the one or the other effect dominates in the end. Another proposition to enhance the audit performance is the extension of the liability of statutory auditors. Prerequisites for the success of this measure are that either no professional liability insurance exists or that, if otherwise, deductibles are calculated as a fixed percentage of the loss. The examples refer to German legal rules, however, similar legal rules are valid for most of the developed market economies.     

STR and SNP analysis of human DNA from Lucilia sericata larvae's gut contents

Importance of forensic entomology becomes inevitable when come across some incident where corpse is unidentifiable and lot of maggots or other insects are present. The most common application of forensic entomology is to use insects for the identification of specimens or human remains. DNA analysis recovered from a larva's gut contents can be used to identify a missing body. The obtained human STR and SNP profile support the association of a maggot to a specific patients or corpse. Main aim of this research was the identification of human DNA from gut contents of third instar maggots (larvae of Lucilia sericata) placed on diabetic patient's wounds for treatment purpose. Maggots (8–15) were taken from each diabetic patients (no. of the patients 8) and DNA was extracted from the gut contents manually by using Qiagen tissue protocol. Agarose gel electrophoresis was performed and the total size of DNA was seen using UV transilluminator. PCR amplification, STRs and SNPs profiling was then performed using PCR 9700 and AmpFLSTR Identifiler and SnaPshot Multiplex Kit (Applied Biosystems) respectively. The results were analyzed on ABI 310. SNP profiles were good and identifiable compared to the STRs where amplification was poor and the peaks were low. This may be the fact of the enzymatic activity present in the gut of the larvae which cause tremendous reduction in DNA size and thus yield. The results of this study reveals that it is possible to obtain a complete human profile using STRs and SNPs even if DNA is recovered from gut contents of maggots.     

The transfer of human DNA by Lucilia cuprina (Meigen) (Diptera: Calliphoridae)

Blowflies leave deposits, termed artefacts, through the processes of excretion and regurgitation. To date, little consideration has been given to the possibility of adult blowflies consuming biological material and subsequently acting as vectors of human DNA through these artefacts. In this study, Lucilia cuprina (Meigen) (Diptera: Calliphoridae) were fed either human blood or human semen ad libitum and their artefacts were analysed for human DNA content. Samples containing 1, 10, 30 and 50 artefacts were tested. Quantifiable and typeable levels of human DNA were found in samples derived from both food sources, and even in samples containing a single artefact. Semen-derived artefacts contained significantly more human DNA than artefacts produced after a blood meal. Consequently a smaller number of artefacts was required to collect sufficient DNA for genotyping. These findings are forensically important as it provides investigators with another potential source of DNA at a crime scene where a body has been moved, or an attempt has been made to clean up biological material. They also highlight how fly artefacts could potentially contaminate and compromise evidence.     

Determination of salvinorin A and salvinorin B in Salvia divinorum-related products circulated in Japan

Two major salvinorins, salvinorin A (SalA) and salvinorin B (SalB), in three Salvia divinorum dried leaf products and nine of its “concentrated extract” products circulated in Japan were determined. These ingredients were extracted twice with acetonitrile and decolored with graphite carbon powder. SalA and SalB were confirmed by liquid chromatography–tandem mass spectrometry in product ion scan mode, and quantified by high-performance liquid chromatography with UV detection (for SalA) and by mass spectrometry in single ion monitoring mode (for SalB). The SalA/SalB contents (μg/mg) were in the range of 3.2–5.0/0.10–0.17 in the dried leaf products and 4.1–38.9/0.26–2.42 in the “concentrated extract” products. These findings would be useful for analysis of S. divinorum-related products circulated in the drug market.     

Locating Humour in Indian Buddhist Monastic Law Codes: A Comparative Approach

It has been claimed that Indian Buddhism, as opposed to East Asian Chan/Zen traditions, was somehow against humour. In this paper I contend that humour is discernible in canonical Indian Buddhist texts, particularly in Indian Buddhist monastic law codes (Vinaya). I will attempt to establish that what we find in these texts sometimes is not only humourous but that it is intentionally so. I approach this topic by comparing different versions of the same narratives preserved in Indian Buddhist monastic law codes. This is a revised version of a paper presented at the XVth Congress of the International Association of Buddhist Studies, Atlanta, Georgia, USA, June 23-29, 2008. I wish to acknowledge financial assistance from the Arts Research Board, McMaster University.     

Forensic applications of stable isotope analysis: Case studies of the origins of water in mislabeled beer and contaminated diesel fuel

This paper describes the use of oxygen (¹⁸O) isotope analysis of water contained in two different materials — beer and diesel fuel — involved in the resolution of two separate cases. In the first case study, it was possible to demonstrate that a sample of beer labelled as premium brand in fact belonged to a cheap brand. The second case related to the contamination of diesel fuel from a service station. The diesel fuel contained visible amounts of water, which caused vehicles that had been filled up with it to become defective. For insurance purposes, it was necessary to determine the source of water. The δ¹⁸O values for the water of nearly all samples of diesel was close to the δ¹⁸O of local tap water at the filling station.     

Analysis of 11 tetrameric STRs in wild boars for forensic purposes

STR profiling of animal species has a wide range of applications, including forensic identification, wildlife preservation, veterinary public health protection and food safety. We tested the efficacy of a multiplex PCR-based assay including 11 porcine-specific tetrameric STRs in a population sample of wild boars (n = 142) originating from Piedmont (North West Italy). Multiple deviations from Hardy–Weinberg expectations were observed, mostly due to a reduction in observed heterozygosity indicative of a high degree of inbreeding. A value of θ of 0.046 and an inbreeding coefficient of 0.089 were estimated. Combined power of discrimination and probability of exclusion values for the STR panel were 0.9999999999996 and 0.99989. In order to test the suitability of the method for meat traceability purposes, a domestic pig reference sample (n = 412), consisting of commercial lines commonly used in the meat production process, was also typed. A Bayesian cluster analysis carried out using the observed genotypes, showed a percentage of correct subspecies assignment of individual samples of 0.974 for wild boars and 0.991 for pigs, thus demonstrating the usefulness of the multiplex STR-typing system for discrimination purposes.     

The BodeChecks solution: A high throughput analysis software combining GeneMapper ID, FSS-i, LIMS, and artificial intelligence

Combining key attributes of GeneMapper^® ID and FSS-i³ software packages with our internally created LIMS and some additional analytical programming has permitted us to increase quality checks on DNA profile data review while eliminating analysis time.     

Remedies for damage to property: money damages or restitution in natura?

This paper compares the tort remedies of money damages and restitution in natura from an efficiency perspective. Although there is a parallel between these remedies and the remedies for breach of contract, i.e. money damages and specific performance, the analysis is fundamentally different in torts, because of the high transaction costs involved. The basis of the comparison is the relation of each of the remedies to the subjective loss for the victim. The conclusion drawn is that no rule is generally preferable, so it is crucial to sort the different types of cases and apply in each of them the remedy, which is better suited. On this premise, are evaluated the relevant rules of Germany, England and France, since each legal system tackles this issue differently.     

Determination of Malathion levels and its effect on the development of Chrysomya megacephala (Fabricius) in South China

The present study determines the concentration of Malathion in rabbit tissues and Dipteral larvae feeding on those tissues. Malathion was found in all muscle and liver samples of the test rabbit, as well as larvae fed on it. Samples from the control rabbit and pupae from all colonies were negative for Malathion. Correlations were found between administered dosage, tissue concentrations and younger or prepuparial larvae. Effects of Malathion on the development rate of Chrysomya megacephala (Fabricius) were also reported. C. megacephala is the most common fly species found on corpses in South China during the early stages of decomposition. Significant differences in larval growth rate were both observed among the colonies fed on muscle and liver. The presence of Malathion in both muscle and liver appears to retard the normal growth rate of C. megacephala in larval stage. Larvae from all colonies fed on tissues from rabbits treated with Malathion were smaller and attained maximum length later than those from the control colony. Duration of the larval and pupal stages was both significantly prolonged for larvae on tissues from rabbit receiving Malathion than those from the control colony. The difference of the duration of the larval and pupal stages together from the muscle colonies would alter the postmortem interval estimation by up to 36 h. As for liver colonies, it would alter the postmortem interval estimation by up to 28 h. A significantly different duration of the larval and pupal stages from the muscle colonies would alter a postmortem estimate by up to 28 h relative to the liver colonies.     

Forensic DNA against wildlife poaching: Identification of a serial wolf killing in Italy

The recent expansion of the Italian wolf population through the Apennine and western Alps, after centuries of contractions, is causing conflicts with human activities leading to a rise in poaching or illegal killings. Here we show how molecular population genetics has been used to identify a suspect serial wolf killer. We analysed DNA extracted from a necklace made of ten presumed wolf canine teeth, confiscated in 2008 to a man living in the northern Italian Apennine (Liguria Region). Individual genotypes were determined using 12 unlinked autosomal microsatellites (STRs), mtDNA control-region sequences, a male-specific ZFX/ZFY restriction-site and three Y-linked STRs. Results indicate that the teeth belonged to six different individuals (three males and three females), which were assigned to the Italian wolf population with p > 0.90 by Bayesian procedures. One of these genotypes matched with the genetic profile of a male wolf previously found-dead and already non-invasively sampled in the same area. Another genotype matched with that of a female wolf non-invasively sampled twice in the same area 1 year before. These data are being used as forensic genetic evidence in the ongoing criminal trial against the suspect serial wolf killer.     

Short term impact of Tribulus terrestris intake on doping control analysis of endogenous steroids

Tribulus terrestris is a nutritional supplement highly debated regarding its physiological and actual effects on the organism. The main claimed effect is an increase of testosterone anabolic and androgenic action through the activation of endogenous testosterone production. Even if this biological pathway is not entirely proven, T. terrestris is regularly used by athletes. Recently, the analysis of two female urine samples by GC/C/IRMS (gas chromatography/combustion/isotope-ratio-mass-spectrometry) conclusively revealed the administration of exogenous testosterone or its precursors, even if the testosterone glucuronide/epitestosterone glucuronide (T/E) ratio and steroid marker concentrations were below the cut-off values defined by World Anti-Doping Agency (WADA). To argue against this adverse analytical finding, the athletes recognized having used T. terrestris in their diet. In order to test this hypothesis, two female volunteers ingested 500 mg of T. terrestris, three times a day and for two consecutive days. All spot urines were collected during 48 h after the first intake. The ¹³C/¹²C ratio of ketosteroids was determined by GC/C/IRMS, the T/E ratio and DHEA concentrations were measured by GC/MS and LH concentrations by radioimmunoassay. None of these parameters revealed a significant variation or increased above the WADA cut-off limits. Hence, the short-term treatment with T. terrestris showed no impact on the endogenous testosterone metabolism of the two subjects.     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.