Quantitative assessment of evidential weight for a fingerprint comparison I. Generalisation to the comparison of a mark with set of ten prints from a suspect

The authors have published elsewhere a quantitative method for assessing weight of evidence in the case where a finger mark from a crime scene is compared with a control print taken from a single finger of a suspect. The approach is based on the notion of calculating a likelihood ratio (LR) that addresses a pair of propositions relating to the single finger that was the origin of the crime mark. In practice, things are rather different because the crime mark will not just be compared with a single finger from a suspect but with a set of prints from all of his/her fingers; likewise, when the mark is compared with a database, this will consist of ten print records from random individuals. It is clear that "finger propositions" are not realistic in this situation and we show how our approach may be generalised to address a pair of propositions that relate to the person that made the crime mark. It often is the case that information is present at the crime scene that enables some inference to be drawn relating to which of the offender's ten fingers left a particular mark of interest. This kind of inference may profitably be drawn into the formal analysis. We illustrate our approach with an example.     

Questions,propositions and assessing different levels of evidence: Forensic voice comparison in practice

This paper contributes to the ongoing discussion about the distinction between observations and propositions in forensic inference, with a specific focus on forensic voice comparison casework conducted in the UK. We outline both linguistic and legal issues which make the evaluation of voice evidence and the refinement of propositions problematic in practice, and illustrate these using case examples. We will argue that group-level observations from the offender sample will always be evidential and that the value of this evidence must be determined by the expert. As such, a proposal is made that experts should, at least conceptually, think of voice evidence as having two levels, both with evidential value: group-level and individual-level. The two rely on different underlying assumptions, and the group-level observations can be used to inform the individual-level propositions. However, for the sake of interpretability, it is probably preferable to present only one combined conclusion to the end user. We also wish to reiterate points made in previous work: in providing conclusions, the forensic expert must acknowledge that the value of the evidence is dependent on a number of assumptions (propositions and background information) and these assumptions must be made clear and explicit to the user.     

围绕“人格”问题的法理论辩

"人格"问题在法学与法律上都是个众说纷纭的概念,由此也引起学界对其意义、范围以及与其它概念相区别的争论。诸如"人格的概念在法律上是否必需?","人格概念是否仅存在于私法制度之中?","人格"的概念是否与"法律主体"、"权利能力"的内涵相同?……等等,都常常引起人们的关注。作为法学、法律上的一个基础概念,人格有其存在的特殊意义,它既在私法上成为法律主体建构的基石,也在公法上为人的平等提供了依据。同时,人格既不等同于法律主体,也不类似于权利能力,而是法学、法律上具有独特内涵的专门范畴。     

Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies

The two questions, "What is public health law?" and "How can law improve the public's health?" are perennial ones for public health law scholars. This paper proposes a framework for conceptualizing discussion and debate about the scope and opportunities for public health law within liberal democracies. Part 2 of the paper draws selectively on this framework in order to highlight some areas where law's potential role deserves greater acknowledgment and exploration.     

以主体间性重构教育过程

主体间性是处理人与人之间关系中的人的主体性.教育作为人与人之间的活动,必须置于主体间性的视域中进行考察.主体间性要求的教育过程是一种"主体-客体-主体"交往实践关系.在这一关系中,学生既是占有教育内容的主体,具有主体性,又是师生交往的主体,具有主体间性.     

Donor conception, secrecy and the search for information

Donor conception has historically been shrouded in secrecy. Such secrecy has been underpinned by social views and legal issues concemrning the adults involved in the process--the donor, the recipient parent(s), and, at times, the doctor. However, there is increasing recognition of the need to focus upon donor-conceived people's interests and rights to have identifying and non-identifying information about their donors. This editorial examines issues raised in relation to information release, while also introducing some of the arguments presented by other authors in this Special Issue of the JLM. It also considers recent Australian federal and State government inquiries that have favoured information release and the former Victorian Infertility Treatment Authority's service model to support people in the process of information access and release. While there has been a clear shift to favouring openness and honesty, legislative action is still required to ensure the balancing and realisation of people's interests.     

Louisiana boys and the politics of delay: gun carry law implementation in the sportsman's paradise

Gun ownership and control issues are remain divisive in academic and in public policy formation and media opinion-making. Despite the recent publication of comprehensive monographs on the subject of gun ownership and how it relates to law, culture and social structure, little is known about the actual practice of promulgating and carrying out various regulations. The implementation of seemingly permissive gun carry permit legislation in Louisiana has been obscured by politicians and law enforcement officials for largely political reasons. Racial and class-oriented subtests are inherent in local and state-level political maneuvers although issues about liability are frequently invoked when permits are not granted. Virtually all major players in this micro-level analysis are unwilling to discuss the issues involved. Consequently, not even those charged with granting the permits claim to not know just what the gun carry law actually means. The ultimate result is delay, confusion and ill-will.     

Introduction

Abstract. The author recalls a distinction between philosophy conceived as "analytics of truth" and philosophy as "ontology of the actual." The latter might be seen as a diagnostics of our times. For this second type of philosophy questions of legitimation are prominent. According to the author, one can distinguish three main sources of legitimacy of beliefs and practices: religion, reason, and nature. Reason has been considered the most important legitimating ground as far as modernity is concerned. Nevertheless, it has never been very clear what reason as a source of legitimation amounts to. The author, finally, points to the fact that, in times of increasing menace to the biosphere, "nature"– metaphorically speaking – may set a standard for human laws.     

谈法律实践中的逻辑理性

法律实践离不开逻辑理性,概念明确、判断恰当、推理有效的逻辑命题贯穿于法律实践始终。法律的逻辑理性包括法律的明确性、法律的一致性和法律的完备性。     

行政法学分析逻辑的认识

行政法学分析逻辑是一个范畴概念,它是指行政法学研究主体在认识和揭示行政法现象时采用的合乎理性的方式以及合理化的技术。行政法学分析逻辑具有使行政法学由学科变为科学、由个别判断到抽象概括、由权威推动变为理论推动、由法律学现象变为社会科学现象等的价值。行政法学分析逻辑的基本特性是整体性、结构性、动态性、开放性、自证性等。行政法学分析逻辑的基本进路包括从主体与客体的逻辑关系进行分析、从表达国家意志与执行国家意志的逻辑关系进行分析、从个体利益与公共利益的逻辑关系进行分析、从行为规则与规范体系的逻辑关系进行分析、从介入元素与设计元素的逻辑关系进行分析。     

From a Symbolic Boom to a Marketing Bust: Genesis and Reconstruction of a Field of Legal and Political Expertise at the Crossroads of a Europe Opening to the Atlantic

The short history of environmental institutions and policies in Europe is marked by their radical reorientation. While environmental protection devices were initially conceived in the 1970s by using the classical model of the "watchdog state," they underwent a shift during the 1990s: the ineffectiveness produced by bureaucratic constraints served as a pretext to hasten the disengagement of the state to the benefit of a regulation negotiated on the basis of financial incentives. The management of environmental issues now relies on the construction of an international market of sustainable development (or of a "rights to pollute" market, similar to that which has been established by the Kyoto protocol). The emergence and reconstruction of this field of expertise can be seen as a kind of microcosm of the perpetually unfinished Tower of Babel that is the European construction. One of the merits of this subject matter is to highlight the internal and external dynamics that have favored the success of a neoliberal counterattack.     

The Political Organization of Soviet Society: Principal Emphases in Scholarly Research (A Survey of the Literature of 1973-75)

The decisions of the Party orient all the social sciences, including the legal disciplines, to deeper and more diverse investigation of various spheres of the sociopolitical life of Soviet society and to study of the most recent tendencies and phenomena in the work of various sociopolitical institutions. An important place in this regard is occupied by the treatment of questions pertaining to the political organization of Soviet society. Considerable attention has been paid in our literature and in that of the socialist countries to study of this subject, particularly in recent years. This is shown, in part, by the appearance of a number of specialized books treating various aspects of the political organization of Soviet society and also by a large number of articles. (1)     

高校管理行为及其可诉性探讨

高校管理行为是高等院校在享有教育管理权利,履行教育管理义务时所实施的行为。近年来,有些高校在实施高校管理行为中侵犯其它法律主体合法权益的事情常有发生,加上我国现有的法律法规对该行为的法律性质规定不明确,由此,产生纠纷后,法律主体能否提起诉讼,如何提起诉讼等问题,没有法律依据。本文主要就有关高校管理行为的法律性质及可诉性问题进行探讨,并以求教于法学界同仁。     

Expanding ADA coverage to employee benefit plans: recent judicial and administrative developments

The Americans with Disabilities Act has been heralded as the Emancipation Proclamation for persons with disabilities. The purpose of the law is to provide nothing less than a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Precisely how the nondiscrimination principles of the ADA will be applied to an employer's provision of health benefits to its employees has been the subject of much debate since the Act's passage in 1990. Although the statutory language and the legislative history support a limited application of the ADA to benefits issues, recent court decisions and enforcement actions by the Equal Employment Opportunity Commission indicate that the ADA may have a much more profound impact in the area of benefits plan design and administration. Moreover, as benefits administrators take a much more active role in managing health care decisions, the ADA may become a vehicle for legal challenges to those decisions that affect the disabled.     

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.     

The Continuing Problem of the Universal to Questions of Justice: A Feminist Reading of Lars von Trier’s <Emphasis Type="Italic">Dogville</Emphasis>

What are the terms of evaluation that seem relevant in deciding whether a film is feminist or anti-feminist? Which critical practices should be engaged in such an evaluation? In recent and contemporary critical feminist practices, feminist arguments are no longer based on a stable subject category of “woman” and there is no longer any particular methodology upon which feminist theorists rely. The category of “woman” has been revealed to be not an ahistorical, stable category but an effect of material and representational practices. Further, feminist methodologies have been concerned to contextualize the framing of the questions they ask, as well as their place in the methodologies they employ. In addition to the refusal of an essentialized female subject, feminists have called into question the idea that it is possible to produce a “feminist method” based on the standpoint of a female subjectivity, even where this subjectivity is admitted as a construct, arguing that this extrapolation to the general from a particular point of view produces political, and frequently racist, effects. In this essay, I consider Lars von Trier’s controversial film Dogville (2003) as a case study to explore the relation of practices of representation to questions of feminist justice. I argue that the film does a lot of good critical work in showing the ways in which certain practices of representation can be mobilized to produce a collectivity (or “sovereignty”) that is seen to emanate from “the people” and to thereby instantiate authority, while simultaneously disguising the material and political effects of its subjugation of “others.” However, in doing this work the film produces its own problematic construction of universality and particularity. Further, the film instrumentalises representations of sexual violence and subjection in order to prove its point, and as productive as these tactics are to illuminating questions of social justice, I argue that this representational practice produces effects that need to be read as anti-feminist.     

Carney v Newton: expert evidence about the standard of clinical notes

In Carney v Newton [2006] TASSC 4 the Tasmanian Supreme Court heard a claim that the defendant breached his duty of care by failing to properly diagnose and treat a node positive carcinoma in the plaintiff's breast tissue. At trial, argument turned on the actual dialogue that took place during the initial consultation, with significant reliance on the clinical notes of the defendant. The court gave considerable weight to "expert" witnesses in ascertaining the acceptability of the defendant's conduct concerning the maintenance and interpretation of his clinical notes. This raises important questions in relation to proof of quality of medical records as part of the current professional standard of care, as modified by recent legislation in most jurisdictions.     

Helping formulate propositions in forensic DNA analysis

The Bayesian paradigm is the preferred approach to evidence interpretation. It requires the evaluation of the probability of the evidence under at least two propositions. The value of the findings (i.e., our LR) will depend on these propositions and the case information, so it is crucial to identify which propositions are useful for the case at hand. Previously, a number of principles have been advanced and largely accepted for the evaluation of evidence. In the evaluation of traces involving DNA mixtures there may be more than two propositions possible. We apply these principles to some exemplar situations. We also show that in some cases, when there are no clear propositions or no defendant, a forensic scientist may be able to generate explanations to account for observations. In that case, the scientist plays a role of investigator, rather than evaluator. We believe that it is helpful for the scientist to distinguish those two roles.     

"仅供议付"提单的相关问题

基于在山东和江苏等地的调查研究,对于近年来出现在中日、中韩等短程国际海上货物运输中的“仅供议付”提单及其相关问题作了初步分析。