Moore��s Moral Facts and the Gap in the Retributive Theory

The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised.     

Institutions and the Legislative Success of ‘Strong’ Presidents: An Analysis of Government Bills in Chile

This paper examines the approval of government bills in Chile, evaluating the effect of presidential prerogatives and policy substance, and considering both bill-specific and contextual effects. The results show that presidential prerogatives over financial policy, as well as the ability to affect the congressional agenda through urgent bill scheduling, significantly influence government bill approval. As expected, government success is enhanced during the honeymoon period. However, changes in public approval of the president do not appear to exert a significant effect on the passage of presidential bills.     

Analysis of the Federal District’s Legislative Chamber in the Information Age

The study investigates the satisfaction with the work of the parliament of Brazilian Federal District. The survey was based on the competencies extracted from the institutional mission and targeted citizens who frequently use social networks. Inferential statistics were used to analyse the data. The results showed a great unsatisfaction about the institution. The most satisfied respondents are the less educated, while the most educated, older, and highest income respondents are the most unsatisfied. The results also highlighted the low interaction between respondents and the Chamber, the absence of an effective official communication channel, and actions associated with sustainable economic development will be more effective in increasing satisfaction.     

Suicidal or Homicidal Sharp Force Injuries? A Review and Critical Analysis of the Heterogeneity in the Forensic Literature

The differential diagnosis between self-inflicted and nonself-inflicted, suicidal and homicidal, injuries is difficult or impossible in many cases and, above all, cannot be made on the basis of information obtained solely from the autopsy or the medicolegal clinical examination. The purpose of this study is to analyze the literature on suicidal and homicidal sharp force injuries and identify the relevant parameters that may help differentiate between suicidal and homicidal deaths. To achieve this goal, a review of 595 potentially relevant articles was performed. After excluding the nonrelevant papers by screening the titles, all abstracts were reviewed, and articles meeting the inclusion criteria underwent a full-text review. The following parameters were compiled into a table: number of cases, localization of the injuries, and number of injuries. The data were statistically analyzed and compared with those available in the forensic literature. On the basis of the heterogeneity of data revealed by the present review, a simple and short checklist of the parameters that should be included when reporting suicides and homicides by sharp force has been proposed.     

Securing the Border in Bosnia and Herzegovina: an Exploratory Analysis of the Impact of Training on Officers’ Knowledge and Experiences Related to Sex Trafficking

Across the globe law enforcement agencies are providing training specific to human trafficking in an effort to educate officers about trafficking indicators, techniques for evidence collection, and the provision of culturally sensitive and victim-centered assistance to trafficking victims. The effectiveness of said training, however, remains an understudied area. The primary goal of this study is to examine the influence training programs have on police officers’ knowledge and experiences related to sex trafficking. Utilizing self-report data from 363 border patrol agents in Bosnia and Herzegovina, a series of statistical analyses finds support for the hypotheses that trained officers will have a better understanding of sex trafficking indicators and field investigation techniques as well as more experience with sex trafficking cases. Somewhat unexpectedly, the results indicate that the vast majority of officers, regardless of training receipt, recognized a need for ongoing training and support. Implications of these findings will be discussed.     

Major Differences in Minors’ Contracts: A Comparative Analysis into the Validity of Contracts with Minors in the Sport and Entertainment Industry

Liverpool Law Review - In Australia and the UK, contracts with minors in sports and entertainment are not uncommon. Generally, such contracts are voidable at the option of the minor. However, when...     

Analysis of 2,4-Dinitrophenol in Postmortem Blood and Urine by Gas Chromatography–Mass Spectrometry: Method Development and Validation and Report of Three Fatalities in the United States

2,4-dinitrophenol (2,4-DNP) is a compound used in the early 1900s as a weight-loss drug but later prohibited due to its severe adverse effects, including death. It has however been attracting interest, due to its weight-loss properties, and appears to be re-emerging in forensic casework. As 2,4-DNP is available for use in industry and as a pesticide and easily accessible online, the dissemination of this drug can be fast. The compound exerts its effects through inhibition of ATP synthesis, and corresponding thermogenic energy loss which can be fatal. A method for qualitative and quantitative analysis of 2,4-DNP in blood and urine specimens using GC-MS with hydrogen as carrier gas is described. The method was validated and displayed acceptable performance parameters with linearity (R² higher than 0.998), inter-assay imprecision (lower than 10.6%), intra-assay imprecision (lower than 10.7%), and extraction efficiency (92.1%). Stability of 2,4-DNP in blood and urine was studied, and the drug was stable up to 30 days refrigeration or frozen. Six cases in United States suspected to be related to 2,4-DNP were analyzed. Three cases were found to be positive for 2,4-DNP. Concentrations of 2,4-DNP were in the range of 61.6–220 mg/L in urine and <3–114 mg/L in blood. Based on our findings, we suggest that medical examiners and forensic toxicologists be aware of the reappearance of 2,4-DNP, including this compound as a target in death investigations related to weight-loss drugs.     

Introducing the Open Clause to improve copyright flexibility in cyberspace? Analysis and commentary on the proposed “two-step test” in the Third Amendment to the Copyright Law of the PRC,in comparison with the EU and the US

The so called “three-step test”, that the limitations and exceptions of copyright shall be allowed in certain special cases, provided that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author, grants copyright flexibilities to balance the interests of all stakeholders, especially within the European system of circumscribed limitations and exceptions. This is essential for the domain of computer law, confronted by rapid and unpredictable global technological developments, and is, thus, enshrined in the most important international intellectual property (IP) treaties. Through the proposed third amendment to the Copyright Law of the PRC, the legislature intends to adopt this test while also introducing an open-ended list of limitations and exceptions that constitutes a China-specific “two-step test.” This contravenes prima facie the thesis endorsed by the WTO Panel in the case concerning Section 110(5) of the US Copyright Act in 2000. In contrast, court decisions in China frequently apply the fair use doctrine of US copyright law, neglecting to consider its peculiar context of the US common law tradition and, thus, unduly expanding the Chinese courts' discretionary power.This paper summarizes the case law in China and takes a comparative approach to address the divergence between the judicial application of cyber copyright law and the existing legislation. It suggests revising the proposed Article 43 of the Copyright Law of the PRC to capture the due interpretation of the three-step test, thereby finessing the delineation between rights protection and free use with the compensation of remuneration under the principle of proportionality. It argues that transplanting the US fair use doctrine into Chinese copyright law is feasible, but with the preconditions of endeavouring to strengthen judicial reform to integrate the IP adjudication systems, enhancing the coherence and efficiency of copyright enforcement, and facilitating consistent dialogues between scholars, practitioners, and lawmakers.     

Analysis about Identity and Diversity of the Legal Culture in View of ＂One Country Two Systems＂ and Its Embodiment in China： Writing with Formation of the Socialist Legal System of China＇s Characteristics

法律文化的概念外延包括了规范制度形态、意识观念形态、实践活动形态的法律文化。法律体系问题主要属于规范制度形态的法律文化,而法系的问题主要属于意识观念形态和实践活动形态的法律文化。由于实行“一国两制”,在“两岸三地”即中国大陆、香港、澳门和台湾存在着多种法律体系与法系,这是“中国特色”的体现。中国特色社会主义法律体系形成之后,我们还可以在“一国两制”的视野下,继续探讨法律文化的同一性与多样性问题,对中西方法律文化中蕴藏的优秀精神——对法治的崇尚和对统治的信念,通过实践不断地选择,融化成一种崭新的、先进的法律文化体系,将法治精神与民族精神融为一体,建成法治国家。     

Predestination and Hierarchy: Vallabh��c��rya��s Discourse on the Distinctions Between Blessed, Rule-Bound, Worldly, and Wayward Souls (the Pu??iprav��hamary��d��bheda)

The Pu??iprav??hamary??d??bheda (PPM) by Vallabh??c??rya (1479?C1531?) is a brief work (25 verses) written in Sanskrit in about the year 1500, which is accompanied by four Sanskrit commentaries and one Hindi (Brajbh????) commentary. The most important and authoritative commentary is by Puru?ottama, written about two centuries after the original text. The article contains a translation of the PPM with long extracts from the commentaries, particularly the one composed by Puru?ottama. After an introduction placing the PPM??s doctrine of the hierarchy of embodied souls (j??vas) and their eligibility to obtain states of devotion (bhakti) in a wider context of Vai??ava sectarian and philosophical schools, the text is presented along with the translation and notes to the text (including extracts from the commentaries). The article concludes with reflections on the PPM??s doctrine of predestination, comparing it with those of other Indian religious sects and within the wider context of predestination in Western religions, where these discussions have been ongoing for more than 1500 years. An extensive bibliography is included at the end.     

It��s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.     

Policing and the Feeling of Safety: the Rise (and Fall?) of Community Policing in the Nordic Countries

A major trend in the Nordic countries is the increasing focus on citizens' perceptions of safety, the enhancement of which is seen as a task for the police. One way to accomplish this has been the introduction of proximity policing. Existing research on the subject from all the Nordic countries is evaluated, with special focus on a comprehensive evaluation of a Danish experiment. The evaluations demonstrate that the concept of proximity policing has had limited success, and it has been abandoned in Finland and Norway. The article concludes by offering some explanations for the lack of success, among these the high level of perceived safety already present in the Nordic countries, the lack of causal relation between police visibility and citizens' perception of safety, and the lack of tradition for citizen involvement in the Nordic welfare states.     

“Executing the Powers With Which it is Intrusted”: Justifications,Definitions and Limitations of Government Speech

Federal, state and local governments have realized that an effective way to counter an undesirable private message is to swallow it up within the government's own speech. So far, the Supreme Court of the United States has acquiesced, including its February 2009 opinion in Pleasant Grove City v. Summum. This article explores the roots, definition and limits of government speech through a close examination of not only Summum but two other recent Supreme Court opinions granting the government a right to communicate even when others contend that the speech conflicts with their own messages. The article concludes that the government speech doctrine needs further explanation with regard to its justification and contours. The rational basis test and political process may not be sufficient to contain government speech within desirable bounds; instead, government speech should be subjected to judicial scrutiny to ensure it remains germane and proportional.     

The Situation in Libya and the ICC’s Understanding of Complementarity in the Context of UNSC-Referred Cases

The PTCI’s decision on the admissibility of the case against Saif Al-Islam Gaddafi and the subsequent AC Judgement are the first expressions of the ICC’s understanding of complementarity in Article 13(b) cases. Admissibility decisions display how the ICC attempts to strike the balance between international justice and states’ right to exercise their territorial criminal jurisdiction. In relation to cases triggered by UNSC referrals, these decisions also mark the delicate moment in which the ICC’s interaction with the politics UNSC is unveiled. In the case against Saif Al-Islam Gaddafi the ICC seems to have taken deferent approach toward the highly authoritative mechanism that triggered the case. Legally speaking, these decisions might appear as a missed opportunity. They fail to provide a conclusive clarification of the parameters of the ‘same case’ test. First, the AC did not subscribe to the offence-specific interpretation of the ‘same conduct’ test embraced previously by PTCI and, in the name of consistency with the Court’s previous case law, reverted to the incident-specific approach adopted in Lubanga. However, the case-by-case approach adopted by the AC undermines the legal certainty that the AC meant to achieve in the definition of the admissibility test. Moreover, the AC has failed to appraise the PTCI’s conclusion that domestic implementation of international crimes is not necessary for the purposes of successfully challenging the admissibility of a case. Finally, in light of the constraints imposed by Article 17(2) on the relevance of due process violations, the PTCI’s decision to reject on the grounds of ‘inability’ as opposed to ‘unwillingness’, which again the AC did not consider, could be seen as evidence of a deferent stance toward the UNSC.     

The Professional Model of Law vs. The Business Model of Law: A Critical View of Opposing Trends in the United States of America and the People��s Republic of China

This study begins by reflecting on the literature characterizing the nature and function of a profession qua profession. It continues by arguing that based upon commonly used indicia of a profession that the practice of law in the US is de-professionalizing in significant ways and morphing towards a functioning business model. The related advantages of such a development for American society, its lawyers and their clients, including especially criminal defendants are critically discussed. It then traces the emergence and ascendancy of the rule of law in China and corresponding quest to institutionalize the practice of law in China as a profession. The study concludes by exploring the alternative advantages of applying the business model to Chinese legal practice. It recommends that embracing a paradigm shift away from the professional model towards a business model, comparable to what is happening in the US, would be to the greater advantage of Chinese lawyers in terms of enhanced authority, increased self-regulation, as well as providing greater leverage in advocating client interests.