Historicising Criminalisation: Conceptual and Empirical Issues

This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about 'overcriminalisation' which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in 'criminalisation scholarship', and suggests there is a failure adequately to distinguish the different senses of 'criminalisation' in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy.     

Maltreatment-Related Fatalities: Issues of Policy and Prevention*

Maltreatment-related child fatalities, despite their relatively infrequent occurrence, constitute a serious social problem. Based on a review of national and unpublished state and local child fatality review team reports, we ascertained some risk factors that set parameters for prevention programs. Children under age four, and in particular those under age two, are at highest risk for maltreatment-related fatalities. Neglect-related deaths occur almost as often as abuse-related ones. Unrelieved crying and toilet training problems are “triggers” for assaults on young children. Males are frequently involved in abuse-related fatalities. People in their mid-twenties, rather than teenage parents are the most frequent perpetrators. About a third of maltreatment-related fatalities were known to child protective services. Implications of these findings, as well as the problem of predicting infrequently occurring events, are discussed in relation to programs of prevention.     

Doctors as Good Samaritans: Some Empirical Evidence Concerning Emergency Medical Treatment in Britain

This paper reports the results of the first survey of British doctors' attitudes towards the provision of emergency treatment outside the usual confines of a surgery or hospital. The experience and perceptions of NHS doctors practising in Sheffield concerning Good Samaritan behaviour are discussed against the background of the rather uncertain common law of medical rescue. The implications of the survey's findings for the direction of legal policy and the promotion of medical altruism are also considered. Despite the alleged deterioration in standards of social responsibility, the potentially fraught nature of such interventions, and the theoretical possibility of legal liability should any rescue attempt go badly, it seems that the overwhelming majority of doctors (in this survey, at least) are willing Samaritans.     

平等机会委员会与平等权利保护——香港的经验

平等权是宪法所确认的公民的基本权利,但由于平等问题的复杂性,平等权利保护面临着诸多困境。探讨在中国建立一种以实现社会公正为目的,以接受市民反歧视投诉为手段,以非司法性方法解决平等权纠纷并结合宣传、教育、法律协助等综合职能的平等权利保障机构的可能性,具有重要的意义。分析香港平等机会委员会运作的优势与不足,中国大陆可以在如下几个方面有所借鉴:制定统一的、更富操作性的反歧视立法;建立反歧视立法的执行机构;建立该机构与立法、行政、司法三机关之间的合理联系;注重反歧视投诉机制的合理性和科学性。     

我国瑕疵证据补正证明的实证分析与理论再构

选取我国东部地区公安司法系统开展瑕疵证据补正证明的实证分析,发现存在瑕疵证据范畴认识不清、瑕疵情形多样、瑕疵发现主体多元、处理方式随意、规范要求混乱、处理程序失范、去瑕疵机会无限、补证不能处理失范等问题.这与我国瑕疵证据规范体系逻辑性弱、理论界学说的多样性、司法实践经验性认识的顽疾、行政审批式的办案经验、诉讼职能混淆、立法与司法理念错位以及三机关冲突解释有关.应明确消弭证据瑕疵的立法目的、回归诉讼职能本质、协调瑕疵证据立法模式、统一证据资格标准,构建简明规范的筛选机制,整合和再构瑕疵证据制度体系.     

Referral Practices Among Lawyers: A Theoretical and Empirical Analysis

This article analvzes referral practices among lawyers. The hypothesis is that the market for legal services is "efficient," that is, market forces enable plaintiffs in personal injury cases to maximize their recoveries, given the quality of lawyers representing defendants. If this market is indeed efficient, one would expect that legal claims which would benefit most from high-quality legal services would be assigned to high-quality lawyers. The evidence shows that referrals enable claims to be matched with lawyers in just that way. That is, through the mechanism of referrals, claims of greater intrinsic value are assigned to lawyers of higher quality.
The paper also provides a model of the decision a generalist must make: to litigate a case himself or refer it to a trial specialist. The implications of the model support the hypothesis that this market is efficient in the sense defined above.     

Regional Unemployment in Transitional China: A Theoretical and Empirical Analysis

The purpose of this paper is to explain the pattern of regional unemployment in transitional China. A model is developed to explore how urban unemployment in the provinces is influenced by peasants' wages, formal sector wages, and the size of the formal sector. Evidence from panel data suggests that a significant indicator of high unemployment rates is greater Urban–Rural Income Inequality within the province. The hypothesis is that the urban–rural income gap produces migration, and more rural migrants substitute for urban workers, causing further urban unemployment. Since the economic reforms began in 1978, the non-state owned enterprises have been carrying an increasing weight in the economy, and they have contributed significantly to the rapid economic growth of China. Empirical evidence shows that economic reforms have reduced unemployment. The provinces that are still heavily dependent on the state sector are therefore more likely to experience higher unemployment.     

Lost in the Semiotic Maze: Empirical Approaches to Proof of Blurring in Trademark Dilution Law

One of the most interesting and possibly disturbing developments in U.S. trademark law in recent decades is the rise of a federal remedy for trademark dilution. Dilution law in theory provides a remedy for owners of famous trademarks when others use similar marks in ways that blur or tarnish the famous mark. This article focuses on attempts by courts and scholars to formulate a methodology for proving this elusive cause of action. The article offers a history of dilution regulation and analyzes and critiques representative empirical approaches to proving dilution, with a focus on dilution by blurring.     

Interactive Relations Between Universities and Firms: Empirical Evidence for Austria

In recent years interaction between universities and the business sector and the role of these collaborations in fostering innovation has received greater attention. This paper analyzes different types of interactions between the two sectors from the perspectives of universities and firms. The three major research questions address the frequency of different types of interactions, the benefits that companies derive from interaction with universities and determinants of interaction for both sectors.Two different surveys form the empirical base for this paper: One among innovative firms in Austria, one among all Austrian university departments. The methodologies we use are analyses of variance and logistic regressions. Our results demonstrate that the main channel of knowledge transfer from universities to the business sector still occurs through the mobility of human capital. The major barriers of interaction lie in the differences between cultures of the two spheres as well as lack of information at the side of firms.     

Videoconferencing in Criminal Proceedings: Legal and Empirical Issues and Directions for Research

State and federal courts are increasingly using videoconferencing to hold proceedings in criminal cases, including first appearances and arraignments. However, little systematic information is available about the extent of its use, the proceedings for which it is used, how it is implemented, and, most importantly, whether videoconferencing affects the behavior or perceptions of participants in a way that violates a defendant's fundamental rights. In this article we review the legal and empirical issues raised by the use of videoconferencing in criminal cases and describe empirical research that could and, we argue, should, inform policy decisions concerning its use.     

刑事证据立法若干问题辩析

第二次世界大战之后,世界范围内掀起了人权保障的浪潮,而刑事司法首当其冲地成为关注的焦点。各国以人权保障为主要着眼点,在刑事司法领域彼此借鉴、相互融合,改进和创新自己的制度,同时,各国在融合刑事司法制度的过程中,又形成了一些得到国际社会普遍认同的理念,并通过有关国际组织制定和颁布的国际公约、文书等形式确认下来。在这样的背景下,我国的刑事司法改革中的重要组成部分———刑事证据立法,不能再以仅局限于控制和惩罚犯罪为指针的道路,应当按照世界刑事司法发展的规则,丰富和完善我国的刑事司法制度。与刑事诉讼有关的国际公约、…     

Contested Insurance Coverage Issues: The Role of Extrinsic Evidence on the Duty to Defend

In the modern era, either the insurer or the policyholder seeks to introduce or limit the use of extrinsic evidence to resolve the duty to defend. This article examines the competing interests of the insurer and the policyholder where the use of extrinsic evidence is advanced to prove or disprove the duty to defend and how different state laws and courts treat the issue of contested coverage.     

刑事司法改革的新举措——评《办理死刑案件证据规定》及《非法证据排除规定》

连日来,河南赵作海冤案引起了社会舆论的广泛关注。随着赵作海被无罪释放并获得65万元的国家赔偿,遣起冤案才逐渐落下帷幕。冤假错案,这个刑事司法界最棘手的问题在不同时期不同程度地上演着。从此前的云南杜培武“故意杀人”案到佘祥林“杀妻”案,再到至今还未讨到说法的河北聂树彬案,诸多的冤假错案轮番登场,     

A Novel Approach to the Examination of Soil Evidence: Mineral Identification Using Infrared Microprobe Analysis*

Abstract: Identification of minerals using the infrared microprobe with a diamond internal reflection objective is a rapid and reliable method for forensic soil examinations. Ninety‐six mineral varieties were analyzed, and 77 were differentiated by their attenuated total reflection (ATR) spectra. Mineral grains may be mounted in oil for conventional polarized light microscope characterization and their ATR spectrum obtained with little or no interference by the liquid. This infrared microprobe method can be used to identify silicates, phosphates, nitrates, carbonates, and other covalent minerals; however, ionic minerals, metal oxide and sulfide minerals, and minerals with refractive indexes greater than diamond do not produce identifiable spectra, but the lack of a spectrum or one with high absorbance values does provide useful information. This research demonstrates the overall utility that infrared microprobe analysis brings mineral identification in soil evidence.