Criteria for Evaluation of Burden-sharing Rules in International Climate Policy

This article presents nine criteria for assessing, comparing, and ranking burden-sharing rules and conceptual frameworks used in climate policy negotiations and agreements. Three of the criteria are concerned with fairness principles and six criteria are operational requirements. The application of these criteria is illustrated in the context of six different burden-sharing schemes. The Multi-sector Convergence approach and the Triptych approach received highest average score of the six schemes. The Brazilian proposal received a similar total score, but unevenly distributed with a high score on fairness principles and low score on operational requirements. The European Union member countries employed the Triptych approach when they differentiated their national abatement targets prior to the 1997 Kyoto meeting. The Multi-sector Convergence approach was developed in a joint ECN (Netherlands Energy Research Foundation) and CICERO (Center for International Climate and Environmental Research – Oslo) project. It is a sector-based, global approach that comprises convergence of per capita emissions at the same level in all countries. Sector-based approaches have a distinct advantage compared to other approaches because they reflect the economic structure of countries rather well. Such approaches could play a useful role in future climate policy negotiations, not the least in discussions on binding climate targets for developing countries.     

完善我国行政复议工作人员制度的思考——以美国联邦行政法法官制度为例

我国现行行政复议工作人员管理制度存在着诸多问题,特别是在选拔、聘任、奖惩以及救济制度中均存在不同程度的限制或影响行政复议活动公正性发挥的现象.美国联邦行政法法官制度中的选拔、聘任、奖惩以及救济采取分散管理权力的方式,以保证行政法法官的独立性.本文分析了美国联邦行政法法官制度的特点,提出了完善我国行政复议工作人员制度建设的具体建议.     

关于《中国国际货运代理协会标准交易条件》的法律问题思考

本文分析了《中国货运代理协会标准交易条件》对货运代理人作为“代理人”和“当事人”不同身份的界定,并针对如何扩大其适用范围做了阐述;此外还探讨了货运代理人在享有货物留置权的同时是否还享有单证留置权,以及有关的时效是否与中国《海商法》冲突和解决的途径。     

Privacy,surveillance, and the proportionality principle: The need for a method of assessing privacy implications of technologies used for surveillance

Developments in technology have created the possibility for law enforcement authorities to use for surveillance purposes devices that are in the hands or private premises of individuals (e.g. smart phones, GPS devices, smart meters, etc.). The extent to which these devices interfere with an individual's private sphere might differ. In the European Union, surveillance measures are considered lawful if they have been issued in conformity with the legal rules and the proportionality principle. Taking a fundamental rights approach, this paper focuses on the information needed for adopting proportionate decisions when authorizing the use for surveillance of devices that are not built for surveillance purposes. Since existing methods of privacy assessment of technologies do not offer the required information, this paper suggests the need for a new method of assessing privacy implications of technologies and devices which combines an assessment of privacy aspects with the different dimensions of surveillance.     

Blind Spots: The Effects of Information and Stakes on Fairness Bias and Dispersion

Mounting empirical research provides evidence of fairness bias and its economic and social effects, where fairness bias refers here to a deviation of claims from unbiased justice due to a personal stake. A far less appreciated issue is dispersion of fairness views and claims, which is also important for its effects on disagreements, empirical analysis, and philosophical theories. This study undertakes a systematic analysis of the effects on fairness bias and dispersion of two variables: stakes and information. Most philosophical and social science analyses related to justice and bias associate heightened bias with increased information and, conversely, impartiality with the elimination of certain information. Less attention has been paid to the opposing impact of information, which is to supply the facts needed to achieve justice more reliably. An important open question is whether, on balance, increased information helps agents to achieve fairer outcomes or whether biased use of such information contributes to less fair outcomes. This study focuses on a set of previously reported experiments that share certain features and subjects them to a new analysis. The results of this analysis suggest that, although information is often used in a self-serving way, increased information can, under certain conditions, contribute to fairness claims becoming less biased and less dispersed, both for stakeholders as well as impartial spectators.     

A Purposive Approach to Employment Protection or a Missed Opportunity?

This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.     

Cross-Disciplinary Conversations: A Psychological Perspective on Justice Research with Non-human Animals

Social Justice Research has devoted two recent issues to the topic of inequity responses in non-human animals. The goal of this paper is to provide some commentary from the perspective of psychological theory and research on justice and fairness in humans. In an attempt to build greater cross-disciplinary sharing of ideas and insights, I briefly review the major insights from (a) contemporary research on questions of fairness and justice with non-human primates and how this corpus of knowledge can inform the on-going study of these issues in psychology and related disciplines, and (b) 50-plus years of research on justice and fairness in psychology and related disciplines, and how it can inform contemporary research efforts with non-human animals going forward. The spotlight behavioral economists and justice research with non-human animals places on the primary role of distributive justice is suggestive that it may be time for a renaissance of interest in this topic in psychology and related disciplines. The focus of psychological research on topics such as boundary conditions on equity as key justice concern (e.g., alternative distributive norms such as equality and need), as a well as attention given to procedural, interactional, retributive, and restorative justice, is suggestive that research with non-human animals should broaden its horizons to study alternative conceptions of justice and fairness.     

刑事再审程序的法理分析--兼论刑事诉讼效率与公正

公正与效率是相互矛盾的两种价值.作为刑事诉讼的特殊补救程序,刑事再审程序虽然在一定程度上体现了对公正价值的追求,但是却牺牲了效率.刑事再审程序的重构应当体现公正与效率的并重,协调两种价值之间的冲突.     

Chaos in The Courtroom Reconsidered: Emotional Bias and Juror Nullification

A widespread presumption in the law is that giving jurors nullification instructions would result in "chaos"-jurors guided not by law but by their emotions and personal biases. We propose a model of juror nullification that posits an interaction between the nature of the trial (viz. whether the fairness of the law is at issue), nullification instructions, and emotional biases on juror decision-making. Mock jurors considered a trial online which varied the presence a nullification instructions, whether the trial raised issues of the law's fairness (murder for profit vs. euthanasia), and emotionally biasing information (that affected jurors' liking for the victim). Only when jurors were in receipt of nullification instructions in a nullification-relevant trial were they sensitive to emotionally biasing information. Emotional biases did not affect evidence processing but did affect emotional reactions and verdicts, providing the strongest support to date for the chaos theory.     

Affect and Fairness in Economics

A strained relationship exists between mainstream economics and ethics. Over the last decade, behavioral economists have strongly argued for the importance of fairness in motivating behavior, based on substantial experimental evidence. Two main approaches to the modeling of fairness have been proposed: the outcome-based inequity aversion approach, and the intention-based reciprocity approach. Both approaches have been quite successful in explaining the experimental evidence. Nonetheless, this paper questions the role that is assigned to fairness in these models and the way fairness is incorporated, using recent experimental findings concerning emotions and fairness perceptions. The analysis supports the view that feelings are important for justice, also from a policy perspective, and pleads for closer attention being paid to the functioning of emotional brain systems.

Network building conferences in support of industry-wide innovations

Promoting industry-wide innovation is a particularly difficult problem of technology transfer because of issues of proprietary information and competition. A promising approach to this problem is network-building through mission-oriented conferences that facilitate communication among those involved in the transfer of technology. This paper defines basic concepts of networking and views mission-oriented conferences as temporary systems. It describes how one mission-oriented conference, the Footwear Technology Symposium, was designed to promote networking. The paper also provides examples of other mission-oriented conferences (including a number of what have been called “research utilization conferences”). The article concludes with a set of recommendations for planners of mission-oriented conferences.     

Advanced Framework for Digital Forensic Technologies and Procedures*

Abstract: Recent trends in global networks are leading toward service‐oriented architectures and sensor networks. On one hand of the spectrum, this means deployment of services from numerous providers to form new service composites, and on the other hand this means emergence of Internet of things. Both these kinds belong to a plethora of realms and can be deployed in many ways, which will pose serious problems in cases of abuse. Consequently, both trends increase the need for new approaches to digital forensics that would furnish admissible evidence for litigation. Because technology alone is clearly not sufficient, it has to be adequately supported by appropriate investigative procedures, which have yet become a subject of an international consensus. This paper therefore provides appropriate a holistic framework to foster an internationally agreed upon approach in digital forensics along with necessary improvements. It is based on a top‐down approach, starting with legal, continuing with organizational, and ending with technical issues. More precisely, the paper presents a new architectural technological solution that addresses the core forensic principles at its roots. It deploys so‐called leveled message authentication codes and digital signatures to provide data integrity in a way that significantly eases forensic investigations into attacked systems in their operational state. Further, using a top‐down approach a conceptual framework for forensics readiness is given, which provides levels of abstraction and procedural guides embellished with a process model that allow investigators perform routine investigations, without becoming overwhelmed by low‐level details. As low‐level details should not be left out, the framework is further evaluated to include these details to allow organizations to configure their systems for proactive collection and preservation of potential digital evidence in a structured manner. The main reason behind this approach is to stimulate efforts on an internationally agreed “template legislation,” similarly to model law in the area of electronic commerce, which would enable harmonized national implementations in the area of digital forensics.     

The legal construction of personal information protection and privacy under the Chinese Civil Code

Personal information protection and privacy interact in diverse ways, especially in the contemporary information age. Although books and articles have focused on this topic, the new tendencies of worldwide legislation and judicial practice bring challenges, as the legal construction of personal information protection and privacy differs from culture to culture and time to time. In 2017, the General Provisions of the Civil Law of the People's Republic of China (“the General Provisions of the Chinese Civil Code” hereafter)¹ (expired) addresses the legal concepts of personal information protection and the right to privacy simultaneously, to which this article refers as the dual model, differing from the one-dimensional mode of privacy protection before. Subsequently, the “The Right to Privacy and the Protection of Personal Information,” a chapter of the newly issued Civil Code of the People's Republic of China's (“the Chinese Civil Code” hereafter), ascertains the dual model and details related provisions. It has been dubbed a landmark ruling of China's personal information protection, greatly boosting the modernization of China's civil system.Despite the many articles that discuss approaches to China's civil protections, little attention has been given to the fundamental question concerning what exactly encompasses the personal information protection and privacy to which these laws refer. Based on the regulations and applicability of the General Provisions of the Chinese Civil Code and the Chinese Civil Code, this paper explores the legal construction of personal information protection and privacy under Chinese legal orders, including the differences, similarities, and interplay between the two rights. By distinguishing the legal value, contents and remedial approaches, this paper concludes that the two rights are distinct but overlap. On one side, personal information protection is elevated to the status of a separate civil right in the legal context of China, rather than part of privacy. On the other side, tailored regulations should be establish according to the criteria of the nature of information, the extent of information processing, and the elements of damage when confronted with overlaps in the two rights in judicial practice. Thus, this paper provides a perspective from which to clarify the approaches to civil protection of personal information and privacy in China and a reference model for enactment of the Chinese Personal Information Protection Law in the future.     

Technology transfer in the americas

This paper focuses on a particular technology transfer area (Anglo-Saxon and Latin America) and presents possible answers to two questions: (1) What are the technologies most needed in the developing nations of Latin America today? (2) How can the transfer of these technologies from the United States and Canada be improved profitably? In addressing these questions, this discussion identifies key technologies driving economic development through-out the world today, and their particular importance for Latin American countries. To better analyze the transfer process, the paper proposes a general model designated as the relocation/absorption paradigm. This model evidences the necessity of an active approach to technology transfer in order for key technologies to arrive in Latin America. This active approach identifies a conceptual knowledge exchange as the essential catalyst in the absorption of the identified technologies. The purpose of this discussion is to explore issues related to the transfer of very recently developed technologies from the United States and Canada to the developing countries of Latin America. By leaving the political discussion aside, the paper approaches this matter from a technology management perspective, aiming to articulate why technology flow to “south of the border” should be increased, and to offer useful discussions on how to achieve that end.     

Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.     

Expediency,Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.     

Global Privacy Concerns and Regulation-- Is the United States a World Apart?

The regulatory approach to privacy protection taken by many foreign jurisdictions is markedly different from that of the United States. The European Union (EU) best illustrates the international approach with its comprehensive privacy directive that applies to all EU members. By contrast, the approach regarding data privacy in the United States has been to pass industry-specific laws and often only in response to public outcry over some privacy concern. These fundamental differences have been the source of some conflict in international commercial transacting. Now that the global community is committed to eliminating terrorism, it remains to be seen if these different attitudes toward privacy by the United States and much of the rest of the world will affect global attempts to weed out terrorists. This article discusses the constitutional basis for most US policy approaches to privacy regulation. The article explains how the US constitution is the source for most of the differences between the US and international regulatory approaches to information privacy. Finally, the discussion addresses how new issues regarding privacy in the war on terrorism may be addressed by US Constitutional law.     

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.     

Fairness in Non-human Primates?

Humans have a sense of fairness, i.e. an interest in the ideal of equity. This sense allows them to compare their own efforts and subsequent outcomes with those of others, and thus to evaluate and react to inequity. The question is whether our closest living relatives, the non-human primates, show the behavioural characteristics that might qualify as necessary components to a sense of fairness, such as inequity aversion. In this article, we review the five different experimental approaches to studying behaviours related to fairness in non-human primates, including their underlying logic and main findings that represent the current state of research in this field. In the critical condition of all these studies, a subject and a conspecific partner have either to invest different efforts or receive different outcomes while observing each other. The main question is whether??and how??subjects react to unequal situations that humans would perceive as ??unfair??. Taken together, the results from all five approaches provide only weak evidence for a sense of fairness in non-human primates. Although apes and monkeys are attentive to what the partner is getting, they do not seem to be able or motivated to compare their own efforts and outcomes with those of others at a human level. Even though the debate is still on-going, we believe that a full sense of fairness is not essential for cooperation. Obviously, apes and monkeys are capable of solving problems cooperatively, without a strong, humanlike sense of fairness. They are mainly interested in maximizing their own benefit, regardless of what others may receive. It is thus possible that a sense of fairness only exists rudimentarily in non-human primates.