结合Sheppard v.Maxwe11案谈我国媒体与司法和谐关系的构建

本文通过对Sheppard v．Maxwell案具体案情利审理的分析，介绍了美国解决媒体与司法冲突的理念和对策，并从立法机关、新闻媒体、司法机关三方面对我国媒体与司法和谐关系的构建提出了具体的建议。     

The Wasted Costs Jurisdiction

The wasted costs jurisdiction is flawed for six reasons, based on an analysis of all reported cases in the last nine years and five years of statistics provided by the Bar Mutual Insurance Fund Limited, and despite the guidance laid down by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. First, it is very costly proportionate to the amount recovered. Secondly, judges can initiate a wasted costs enquiry, which is unfair and even more disproportionately costly. Thirdly, it is procedurally complex. Fourthly, it is unpredictable whether the client will waive privilege, and what the consequences will be whether or not privilege is waived. Fifthly, it is not possible for solicitors and barristers to make contribution claims against each other. Sixthly, it is mostly used against lawyers representing legally aided litigants from whom costs cannot be recovered.     

Validation issues around DNA typing of low level DNA

A recent ruling in the Crown Court of Northern Ireland, R v. Hoey, [R v Sean Hoey. 2007, Crown Court of Northern Ireland] has raised questions about the validity of one variant of DNA analysis, often termed LCN. The ruling and subsequent discussion also raises questions about what constitutes validation of a technique.This paper examines what can be achieved in a laboratory based validation study against the Daubert standard and against guidance given in the UK. There is a significant discrepancy between what can be achieved and the Daubert standard but much less of a discrepancy against the UK guidance. Much of the difference relates to differences in word usage, definitional difficulties, and a lack of mutual understanding and communication between the judiciary and forensic scientists. This highlights a gap that needs attention.     

The “process” of patenting: Why should we care about a potential U.S. Supreme Court decision in Bilski v. Doll?

In Bilski v. Doll, the U.S. Supreme Court is called to define one of the categories of patent-eligible subject matter, “process” patents. In 2008, the Court of Appeals for the Federal Circuit held that the category has a narrow meaning, and that to be eligible for a process patent under 35 U.S.C. § 101, the invention must involve a machine or apparatus or involve a transformation to a different state or thing, ultimately rejecting the patent application as unpatentable subject matter. The patent applicants have asked the U.S. Supreme Court to determine two issues: first, the meaning of “process” in 35 U.S.C. § 101 and whether the lower court properly relied on a “machine-or-transformation” test, and second, the test's potential conflict with 35 U.S.C. § 273, which provides protection for “method[s] of doing or conducting business.” The Court's decision could change the way that research and business are done, and patent protection for such investments. Parts 1 and 2 of this article address Bilski directly and what is and is not in dispute. Part 3 addresses the “machine-or-transformation” test, while Parts 4 and 5 address reasons not to adopt such a test.     

Ex Turpi Causa: Reformation not Revolution

Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.     

Vexatious Claims: Challenging the Case for Employment Tribunal Fees

Since July 2013, recourse to Employment Tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants. The impact of this reform has been dramatic: within a year, claims dropped by nearly 80 per cent. This paper suggests that this fee regime is in clear violation of domestic and international norms, including Article 6(1) ECHR and the EU principle of effective judicial protection. Drawing on rational choice theory and empirical evidence, we argue that the resulting payoff structures, negative for the majority of successful claimants, strike at the very essence of these rights. The measures are, furthermore, disproportionate in light of the Government's stated policy aims: fees have failed to transfer cost away from taxpayers, have failed to encourage early dispute resolution, and have failed to deter vexatious litigants. The only vexatious claims, we find, appear to be those which motivated the reforms in the first place.     

Anti‐Corruption Watchdog Accountability: The Limitations of Judicial Review's Ability to Guard the Guardians

Anti‐corruption watchdogs form an important part of integrity measures in Australia's system of government. Integrity theory places anti‐corruption watchdogs in a fourth branch of government and as a part of a national integrity system as a way of understanding how they detect and prevent corruption and promote integrity. Integrity theory claims that an important part of the oversight of watchdogs occurs through judicial review of watchdog decisions by the courts. However, it fails to recognise the unique limitations when undertaking judicial review of watchdog decisions. This article submits that it is important to recognise these limitations to properly assess the effectiveness of a national integrity system and a fourth branch of government. The article explores the unique limitations of the court's ability to hold watchdogs to account and offers suggestions for managing these limitations.