Technology transfer in the navy: The historical background

This report reviews technology transfer in light of the Stevenson-Wydler Technology Innovation Act of 1980. Following a brief introduction, a section on “Definitions” explains the several meanings that the phrase “technology transfer” now carries in policy discussions. The next section, on “Passive Technology Transfer”, reviews traditional Department of Defense scientific and technical information programs that relate to technology transfer. A section on “Military Industrial Transfer” examines technology transfer from the Defense Department to private industry, expecially to defense contractors. A section on “The Stevenson-Wydler Act and Active Technology Transfer” describes the principal provisions of the new act and why Congress passed it. The next two sections, on “NASA’s Technology Transfer Program” and “The Federal Laboratory Consortium” outline the two existing Government programs Congress relied upon in developing ideas for the new law. A section on “Implementation of the Stevenson-Wydler Act”, discusses several important issues that must be considered by Navy laboratory management as the new law is put into effect in the Navy. Finally, a brief conclusion emphasizes the major point of the report: That Congress, in passing the Stevenson-Wydler Act, did not fully consider what relationship the new technology transfer programs it was requiring in the Executive Branch should bear to existing programs with similar purposes. If the public interest is to be served, the report argues, the Navy must consciously and carefully determine the proper nature of this relationship.     

<Emphasis Type="Italic">Alice’s Adventures</Emphasis>, Abductive Reasoning and the Logic of Islamic Law

How does a Muslim jurist think the law and how, accordingly, he judges a fact? Using Alice in Wonderland as hermeneutical device to explore the logic of fiqh, this article identifies a divergence between Western and Islamic legal thinking in the application of abduction as key form of inference in the law of Islam. In particular, looking at the fact/law relation in symbolic terms, the article highlights how, while a dichotomy between fact and law characterizes Western legal thinking, fiqh upholds a connection between the “real” and the “right” (?aqq), where the effort (ijtihād) in understanding sharī‘ah postulates the actualization of the “rule” (?ukm) in God’s creation. Thus, if sharī‘ah pre-scribes the Law, not only is the rule discovered through the sources (u?ūl), but the right has to be justified through a verdict de-scribing the fact, for the law to be validly stated for the given situation. In this sense, abduction as explanatory “hypothesis” (Peirce) and “inference to the best explanation” (Harman) of sharī‘ah provides an account for the probabilistic nature of fiqh, its ramification (furū‘) through verdicts, as well as for the epistemic and narrative function of the tradition as core aspects of the logic of Islamic law. At the same time, doubts can be raised about the compatibility between this logic and the deductive logic of modern state law, as a sub-product of Western legal thinking.     

Ritual Texts and Literary Texts in Abhinavagupta’s Aesthetics: Notes on the Beginning of the ‘Critical Reconstruction’

In a recent paper in this Journal Hugo David discussed the possible sources for the comparison that Abhinavagupta draws between ritual and literary discourse at the beginning of his “critical reconstruction” of the theory of rasa in the sixth chapter of his New Dramatic Art. The question of Abhinavagupta’s sources raises more general questions about Abhinavagupta’s use of the concepts and analytical procedures of Mīmā?sā in his literary-theoretical works. What, if anything, does Mīmā?sā really have to do with the analysis of literary texts? How, if at all, can we construct parallels between ritual and literary texts such that the hermeneutics of one can illuminate the hermeneutics of the other? And more specifically, what are the examples that might convince us that there are such parallels? With these questions I attempt, modestly, to reach a somewhat better understanding of the beginning of Abhinavagupta’s “critical reconstruction,” which has already received a disproportionate amount of scholarly attention. I also hope, however, that this passage might serve as an example for how to think of the “borrowing” of concepts typically associated with Mīmā?sā into the realm of literary theory.     

State Tasks and Human Rights

This paper analyses the change in the notion of fundamental and human rights in Germany and throughout the European Union during the process of European integration. This change, that can be summarized in the formula “from human rights to state tasks,” signifies the integration and partial amendment of the French Revolution's ideals (liberté, égalité, fraternité) with the new ideals of security, diversity and solidarity. These new ideals make it necessary for the state to play a positive role in devising, for example, a policy of minority recognition and a long list of social rights. These rights are often translated into merely generic “norms on state objectives” and not directly binding law in force. This means that such rights increasingly become a political and legislative issue making it more difficult for the Courts to offer guarantees. 1 Abstract by Giorgio Bongiovanni.
     

When Voters Pull the Trigger: Can Direct Democracy Restrain Legislative Excesses?

Direct democracy is sometimes described as a “gun behind the door,” but how do legislators react when voters pull the trigger? Leveraging the high‐profile referendum defeat of a controversial law passed by the Ohio legislature, I examine how legislators respond to voter disaffection. Using interest groups to “bridge” votes before and after the election, I show that the measure's defeat induced moderation on the part of the Republican legislative majority, while leaving the behavior of opposition Democrats largely unchanged. The results suggest that direct democracy has the potential to restrain legislative excesses and alleviate polarization in state legislatures.     

The Juristic Study of Law's Formal Character

Abstract. The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in (1) legal rules, (2) other basic legal constructs such as interpretive method, the principles of stare decisis, legal reasons, and legislative and adjudicative processes, and (3) a legal system viewed as a whole. For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. (Other constructs have other formal attributes.) Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of (l), (2), and (3) above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem-specific policy but also serves formal values (which may sometimes trump or limit policy), treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” (the overformal), but also the “sub-stantivistic,” and shows how the overall theory is important both jurisprudentially and in practical ways.     

From Movement to Mentality,from Paradigm to Perspective,from Action to Performance: Law and Society at Mid‐Life

Kitty Calavita's Invitation to Law & Society: An Introduction to the Study of Real Law (2010) offers a broad and useful overview of the intellectual accomplishments of law and society scholars and a self‐confident assertion that they perform an invaluable service by focusing on “real law,” that is, law in action rather than law on the books. This essay argues that the field is more fragmented than Calavita notes and that law and society research is neither engaged with a common set of questions nor organized around a single central insight or an agreed‐upon paradigm. Moreover, this essay raises questions about Calavita's claims about “real” law and suggests that we complement law and society's traditional focus by examining the varied performances of law, whether in texts or in the world beyond those texts.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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The university is the classroom: teaching and learning technology commercialization at a technological university

In 2013, the University of Strathclyde became the first Scottish university to receive the prestigious THES UK Entrepreneurial University of the Year award. In this article, I describe how successful technology commercialization education in this leading UK-based technological university is deeply dependent on the state of the university’s entrepreneurial ecosystem. Two case studies illustrate the relatively minor “supporting” role that conventional teaching plays in the practice of technology commercialization, and the major role that a comprehensive university entrepreneurial ecosystem can play. Lessons drawn from teaching and learning technology commercialization at the University of Strathclyde are discussed. These include “teaching by stealth” through the ecosystem, basing students’ class assignments on their own technology, and the use of local role models in class. I conclude by summarizing today’s challenges and opportunities facing Strathclyde’s entrepreneurial ecosystem.     

Prescriptions for punishment: Official ideologies and jall overcrowding

This study assesses key actors’ “worlds of fact” regarding jail overcrowding in California through an examination of their perceptions of causes and effects, support for different solutions, and adherence to major punishment ideologies. How policymakers define and structure a specific problem Gail overcrowding), can influence how policy options are differentially weighed as well as how existing policy processes can be improved. A mail survey was sent to two key decision making groups who largely regulate the intake and outflow of local jails: sheriffs and chief probation officers of the 58 California counties. Group differences in responses were predicted from the perspectives of blame avoidance, domain dissensus, and punishment theory. Relationships were examined among perceived causes, effects, solutions, and punishment ideologies. While both sheriffs and probation chiefs advocated highly similar “control-oriented” punishment ideologies, probation chiefs advocated more “progressive” solutions to jail overcrowding. Perceived causes and effects of jail overcrowding, along with support for deterrence ideology, were strongly related to elite support for three potential solutions: building more institutions, passing tougher laws to deter potential offenders, and using shorter sentences for low-risk offenders. Implications of these results for understanding jail overcrowding and policy processes are discussed.     

The thin red line: Refocusing data protection law on ADM,a global perspective with lessons from case-law

This article explores existing data protection law provisions in the EU and in six other jurisdictions from around the world - with a focus on Latin America - that apply to at least some forms of the processing of data typically part of an Artificial Intelligence (AI) system. In particular, the article analyzes how data protection law applies to “automated decision-making” (ADM), starting from the relevant provisions of EU's General Data Protection Regulation (GDPR). Rather than being a conceptual exploration of what constitutes ADM and how “AI systems” are defined by current legislative initiatives, the article proposes a targeted approach that focuses strictly on ADM and how data protection law already applies to it in real life cases. First, the article will show how GDPR provisions have been enforced in Courts and by Data Protection Authorities (DPAs) in the EU, in numerous cases where ADM is at the core of the facts of the case considered. After showing that the safeguards in the GDPR already apply to ADM in real life cases, even where ADM does not meet the high threshold in its specialized provision in Article 22 (“solely” ADM which results in “legal or similarly significant effects” on individuals), the article includes a brief comparative law analysis of six jurisdictions that have adopted general data protection laws (Brazil, Mexico, Argentina, Colombia, China and South Africa) and that are visibly inspired by GDPR provisions or its predecessor, Directive 95/46/EC, including those that are relevant for ADM. The ultimate goal of this study is to support researchers, policymakers and lawmakers to understand how existing data protection law applies to ADM and profiling.¹     

Gun Control in a Developing Nation: The Gun Court Act of Jamaica

Generally, the study of Third World crime can be approached from two acutely different theoretical perspectives. “Modernization” theory attempts to attribute crime in Third World societies to the rapid pace of industrialization and attempts to apply a variety of criminological theories that focus on the individual and the immediate social context of the actor. “Political economy/dependency” theory attempts to address the processes of imperialism and underdevelopment and the whole range of law violations and legal controls present in post-colonial societies.

This paper explains the Jamaican firearm crime problem, and the societal response to it, during the 1970's and early 1980's by applying the political economy/dependency theoretical framework. The legislative policy designed to curb increases in firearm crimes in Jamaica during the study period was the Gun Court Act. This mandatory piece of criminal legislation is examined in order to develop the connection between crime in underdeveloped nations and crime and social control.     

Reflections on Punishment from a Global Perspective: An Exploration of Chehtman’s The Philosophical Foundations of Extraterritorial Punishment

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened.     

Exploring the Sources of Authority Over the Word Meaning in Transgender Jurisprudence

This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category. When it comes to the legal question of who may marry whom, and what the terms “man” and “woman” actually refer to, there is no statutory definition of the terms “man”, “woman”, “male” and “female”. This has put the onus on judges, especially those who needed to decide whether a transgender person can marry in his/her affirmed sex, to interpret these terms. Two lines of cases in transgender jurisprudence are examined so as to have a close study of how the courts construed these terms and classified transgender people into a category. The first concerns United Kingdom cases, namely Corbett v Corbett (1971), Bellinger v Bellinger (2003) and the Hong Kong case W v Registrar of Marriages (2010), (2011) & (2013). The second consists of Australian cases such as Secretary, Department of Social Security v State Rail Authority (1993) and Re Kevin (2002). This paper discusses these issues by analyzing and comparing different cases in transgender jurisprudence as well as examining how these issues play out in contemporary Hong Kong.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

越权立法的认定与处理

越权立法,除了指超越权限制定法律规范的行为,也指超越立法权限制定的法律规范。认定越权立法,须以专属立法权限为基础,并关注普通法律对立法权限的个别规定;基于目前立法权限的划分,可能越权的只有法规和规章。越权立法属于立法违宪,司法机关可以拒绝适用越权制定的规章,但不得拒绝适用越权制定的法规。审查机关撤销越权立法的决定应具有有限的溯及力:刑事案件,要重新审理;民事案件和行政案件,应即时“冻结”。     

Text and terrain: mapping sexuality and law

This article is concerned with the intersections of law, texts and sexuality. Drawing on recent work in theoretical cartography, this article seeks to argue that a cartographical reading of law can be usefully brought to bear on the legal analysis of sexuality. This article considers how looking to contemporary theoretical and critical cartography can help to reveal law as a process of mapping; how sexuality is mapped both within and without the law through cultural texts, and how law’s encounters with the terrains mapped out by those texts might be enriched and diversified. This article seeks to consider how legal mappings of the terrains of sexuality might be sufficiently contextualised and located within a wider socio-political context, and how a specifically cartographical interpretation might reveal the potential for the law to accommodate the complexity of gendered and sexualised identities that do not easily conform to singular positionings. In order to navigate the texts and terrains of law and sexuality, we must first learn to become cartographers, and through this process, perhaps open up radical and alternative mappings.

宋格初探

宋初,编敕为最主要、最经常的立法形式,格的地位及作用明显衰微。神宗元丰以后,对格的编订又明显增加,其编纂体例等也有变化。这一变化的原因,是神宗对编敕、令、格、式的性质作重新界定,使格的性质发生显著变化:格完全行政法化,成为令的实施细则。格的性质的变化,其内在原因是编敕的刑法化。由于宋格成为令的实施细则,原为令的实施细则及公文程式的式则成为纯粹的公文程式。由于编敕、格性质及立法功能的变化,使得宋朝的立法模式也发生变化,即由宋初主要通过编敕进行立法的模式,变成对敕、令、格、式统一编订的立法模式。