台湾公立大学治理结构改革的审视——基于《大学法》的视角

台湾从1994年以来本着保障学术自由和大学自治的管理理念,以《大学法》的修订为指导,重建公立大学治理结构,其成败经验,值得大陆构建现代大学制度时思考、研究和借鉴。     

Interdependenz und ideologische position: Die konditionale Diffusion der Zigarettenbesteuerung in den US-amerikanischen Bundesstaaten 1971–2006

This paper inquires into the interdependence of cigarette taxation in the US states between 1971 and 2006. It is argued that diffusion influences emanating from the tax policies of other states have an effect that is conditional upon the government ideology in a focal state. Specifically, it is shown that only those state governments that are not positioned on the far right end of an ideology continuum use an environment of high cigarette taxes to pursue their fiscal and health policy goals. At the same time, interventionist ideology can only be effective if it operates within a favorable policy environment. I argue that casting policy diffusion as conditional allows for empirically more accurate and theoretically richer models.     

Is an exemption from US groundwater regulations a loophole or a noose?

In the United States, the Safe Drinking Water Act (SDWA) regulates most groundwater used for drinking water. The Act covers most urban areas but because it does not cover small water systems, it implicitly exempts nearly half of those living in rural America. In large measure, monitoring required by the SDWA has illustrated the prevalence of naturally occurring arsenic in groundwater in concentrated areas throughout the country. Even though many in Congress seem aware of this threat and have, indeed, supported more stringent arsenic standards, Congress, on the whole, has failed to update the SDWA to cover those water systems left unprotected by the Act. Conventional political science theory suggests that effective congressional oversight depends on Congress creating both active (e.g., hearings and commissioned studies) and passive oversight mechanisms (i.e., citizen suits and opportunities for constituent feedback). In this case, Congress had, in fact, created sufficient tools to detect a serious problem but, having identified it, nevertheless failed to respond. Why? In exploring Congress’s inaction, we find something unexpected: the structure of the SDWA has created perverse incentives not only for unregulated water systems but also for regulated systems to push to keep exempted water systems unregulated. The outcome is that those outside of the SDWA’s protections remain outside and continue to drink contaminated water by the glass full. So, while Congress created a loophole, it may have inadvertently tied a noose.     

The US Alien Tort Claims Act of 1789, the US Torture Victims Protection Act of 1992, and the Gongadze Case: A Right without Adequate Remedy?

The US 1992 Torture Victims Protection Act (TVPA) strengthens the reach of the 1789 Alien Tort Claims Act (ATCA) to US citizens alleging claims of torture and/or extrajudicial killings that occur abroad, but only if the plaintiffs were US citizens at the time of the criminal acts. Should the later-in-time statute, which gives effect to the United Nations Convention against Torture and extends remedies under the ATCA, be amended to apply to those given political asylum in this country from the moment of their entry? Is not the limbo status of victims given haven in the USA but not automatic citizenship, victims who rightly need resolution of brutal facts which occasioned rupture with their country of origin, a situation that cries for more precise remedy? This note explores this issue as raised by the case of Myroslava Gongadze, the widow of slain political journalist Georghy Gongadze in the Ukraine in September 2000. Only three of the perpetrators, policemen who say they followed orders, were put on trial in 2007–2008. Those who allegedly gave the orders for the killing continue to evade justice.     

Coastal Oil Spill Preparedness and Response: The Morris J. Berman Incident

On January 7, 1994, the disabled tank barge Morris J. Berman ran aground spilling 750,000 gallons of heavy‐grade fuel oil on the beaches of San Juan, Puerto Rico. The spill impacted a variety of resources and temporarily shut down a portion of the tourist industry during the height of the winter season. The spill is noteworthy as the first major incident in U.S. coastal waters following passage of the Oil Pollution Act of 1990 (OPA 90). A landmark provision passed as a result of the 1989 Exxon Valdez catastrophe. The Berman spill provides a test case for assessing the robustness of policy mandates incorporated in the OPA 90. Mandates that compelled the oil transportation and response network to assume high‐reliability organization characteristics. The study finds that although high‐reliability characteristics were seemingly adopted their implementation during the Berman spill evidenced a significant number of shortcomings.     

论房屋征收补偿协议要式化的困境与出路

房屋征收补偿协议的法律属性是行政契约,征收人的签约行为是一种要式行政行为。我国相关法律规范对房屋征收补偿协议签约行为的主体、程序、内容与方式等进行了要式化构造。通过考察房屋征收补偿的地方法律规范、裁判文书以及征收补偿实践参与者的感受,可以发现补偿协议签约行为要式化在实践中存在征收人权力行使恣意、被征收人的契约性权利遭受严重侵害的困境。落实与完善房屋征收补偿协议签约行为的要式化法律制度,应以"权力与契约的整合"为法理指引,建立签约阶段主体地位平等关系,利用签约程序规制行政权力,提升签约内容的合意性以及强调签约方式的合作性,并在上述理念指引下,以限定签约主体范围与进行信用管理,完善前置程序、签约期限与救济程序,优化奖励制度、协商机制与生效要件,实施违法监督与行政问责等为具体出路。     

Divine Witness

Journal of Indian Philosophy - When People were falsely accused, and yet there existed no human means to testify to the truth, to whom did they resort for the final judgment? In ancient India, it...     

Why university inventions rarely produce income? Bottlenecks in university technology transfer

As intended, universities have gained ownership to an increased number of inventions from their labs after the enactment of Bayh-Dole act in 1980. But, how well are the universities taking advantage of the provisions of this Act? One aspect of this question is addressed empirically in this study. An analysis of the Association of University Technology Managers (AUTM) periodic Licensing Activity Surveys of 1995–2004 indicated that the annual income generated by licensing university inventions was 1.7% of total research expenditure in 1995 and 2.9% in 2004. Some consider this and the rate of commercialization of university inventions to be too low. A premise of this study is that the slow rate of commercialization of university inventions may be due to the lack of adequate trained staff and inventions processing capacity in University Offices of Technology Transfer (UOTT). This paper describes an empirical study of the non-legal, technical, and legal invention processing capacity of US UOTT and its implications. A survey questionnaire was sent to 99 randomly selected US research universities. Seventy-five percent of the respondents mentioned shortage of staff for non-legal and legal processing of inventions. More than a third of the respondents claimed that, in 2006, they failed to process more than 26% of the inventions due to insufficient processing capacity in the UOTT. The study includes multiple regression models to estimate the effect of staffing on performance variables (i.e., Provisional Applications Filed, Patent [non-provisional] Applications and Licenses Executed) and “Inventions Not Processed” by the UOTTs due to staff/budget shortages. It is argued that, when short of staff and budget, UOTTs will be reduced to devoting their resources to ensuring patent applications are filed and patents are issued at the expense of marketing of inventions. Further, high-tech inventions are difficult to market because, often, there are no ready markets for them, especially if the inventor had no pre-invention contacts with a potential licensee. High-tech inventions originating from university labs may need market space/niche identification, new market creation, and the translation of the lab result into an “investor friendly” business plan; most UOTTs may be significantly short on these skills. Recommendations of this study are: first, an in-depth study of universities that are prolific in licensing inventions (40 or more licenses a year) is necessary to understand the reasons for their success in the context of UOTTs capacity to process inventions. Further, all federal agencies sponsoring university research must earmark a small percentage of each grant exclusively for commercialization purposes at the university. The paper offers multiple options for the effective use of these funds. The paper also offers several avenues for future research.     

试评韩国《集合建筑物法》第三次修订

虽然韩国《民法》中的土地和建筑物属于不同的所有权客体,但两者基本上适用相同的物权变动法理。然而,就部分所有权而言,土地和建筑物之间存在一定差异。土地可仅依当事人的意思及分割登记而实现对其一部分之所有。相比之下,建筑物却不能仅凭当事人的意思对其一部分进行分割和所有。只有当建筑物的相应部分具备独立性时,才能在将该建筑物的一部分登记为独立所有权的客体后,实现受法律保护的区分所有。上述内容所涉及的规定建筑物部分所有权的韩国法律,即为《关于集合建筑物的所有及管理的法律》。但由于韩国法院担心区分所有权的泛滥可能造成不动产所有权秩序的混乱,因此对《集合建筑物法》项下建筑物之一部分的独立性要件采严格审核原则,其结果导致区分所有权不会轻易得到认定。但是,综观区分所有的具体事例,从平衡性和比例性的角度来看,则会产生法院拒绝提供保护是否正确的疑问。正是基于对这种情况提供保护之必要性的考虑,遂有《集合建筑物法》第1条之2的新设,以便将此等情形中的一部分作为法律所保护的对象。但即使在法律修订后,韩国法院基本上仍对区分所有权的认定持消极态度。对此,试将区分所有权的保护问题与因韩国不动产物权变动登记主义造成的事实所有权的保护问题相联系,提出扩大保护之必要。     

美国自然资源损害赔偿法律制度初探——以油污治理为视角

美国1990年《油污法》制定前就有关于自然资源损害赔偿的规定。依据公共信托理论,美国联邦法授权政府机构作为自然资源托管人对有关自然资源损害赔偿问题做出规定。《综合环境反应、赔偿和责任法》和《油污法》分别将美国内政部和国家海洋与大气局规定为托管人。各国针对油污事故的国内立法,可以借鉴《油污法》的规定,并入有关自然资源损害赔偿制度的内容。