我国境外无人继承文物流失的风险控制研究

我国境外无人继承文物面临流失的风险。国外法律一般规定境内无人继承的遗产归国家所有,对此,我国缺少明确的政策法规,赋予特定的主体追回境外无人继承文物的资格。此外,我国法院在受理此类案件时,会遇到管辖权、冲突规范和实体法律规定不完善等问题,难以作出有利于我国文物保护的判决。控制我国境外无人继承文物的流失风险,要求我国从原则、规则和程序等方面进行规制和完善。     

Rule of Law Expedited: Land Title Reform and Justice in Burma (Myanmar)

Abstract

The development of rule of law is touted as one of the most important considerations in Burma (Myanmar) today, yet its meaning is highly contested after fifty years of military rule. This paper will examine how the rule of law in Burma’s transitional political environment has been influenced by the legacies of military rule and the government’s development policies since 2011. A series of laws introduced by the Thein Sein government under the rubric of rule of law and good governance had a significant impact upon small hold farmers across the country. While some laws specifically related to farmers and their land, others encouraged private investment in the land used by farmers. The combined effect of these laws was to formalise the pattern of land grabbing that had developed under the previous government and to encourage land speculation. Moreover, they show how an expedited procedural rule of law incited conflict and further injustice. Any progress towards substantive justice and a more democratic rule of law must keep pace with improvements in the country’s limited administrative and judicial capacities. Whether, and how far, Burma can develop and move beyond a thin or procedural rule of law will be tested as the country experiences life under the NLD government.     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

Litigating Agency Change

A study of Forest Service-related litigation and administrative appeals was undertaken to examine their potential roles in effecting change within the Forest Service. The frequency of federal lawsuit decisions involving the Forest Service increased markedly between 1971 and 1993, indicating a dramatic increase in the use of litigation as a tool to force change within the agency, particularly in the Ninth Circuit. Administrative appeals followed a similar increasing trend. An examination of the instigators and purposes of lawsuits found that litigation is used most frequently by environmentalists and most often to block commodity production activities by the agency. Although the agency wins the majority of suits in which it is involved, litigants who initiated lawsuits to stop commodity production activities had higher success rates than litigants seeking to challenge additional environmental measures or to promote commodity production by the agency. A qualitative examination of five National Forest Management Act lawsuit case studies concluded that when litigants are successful in legal challenges against the agency, the court decision often results in substantive on-the-ground changes in management, thereby providing an incentive for additional use of litigation as a means to alter agency actions. These results indicate that the courts and administrative appeals process likely have been significant factors in catalyzing change within the Forest Service.     

The Wapentake Courts of The Honour of Pontefract, 1427–1877

Wapentake courts continued to play an important role in the administration of the West Riding throughout the early-modern period and for much of the nineteenth century. This can be demonstrated from the surviving court records of the six wapentake courts of the honour of Pontefract. These show that wapentake courts, acting as sheriff's tourns, performed a central function in early-modern local administration. All the township officers within their jurisdictions, including constables, sworn men (bye-law men) and pinders, were sworn into office at sittings of these courts. The roles of these different township officers are made clear. These courts and the seigneurial courts with jurisdiction over civil suits were inter-dependant, as were the wapentake courts and the courts of quarter sessions. Evolutionary changes in the sittings and functions of these courts are described. The wapentake courts were undermined by nineteenth century reforms of policing and to courts for debt litigation, which eventually led to the final abandonment of these courts despite local support for their continuation.     

Aspects of continuity and change in the Italian placitum, 962-72: The nature and significance of courtroom procedures

During the first seventy-five years of the tenth century in Italy three distinct procedures existed for the purpose of resolving jurisdictional disputes over property. Together they comprise the activity of a special court known only by the general term placitum. The property court, the placitum under discussion here, employed three procedures: (1) a litigation, (2) confirmation to avert possible conflict between two parties over opposing claims, and (3) a request for the confirmation of a commercial transaction.My study considers two problems: what purpose did the courts serve and to whom were they useful; second, what was the nature and intent of the procedures that these courts employed? The answers require an investigation of the personnel who administered the courts and the persons who sought court judgments, since the status and interests of both groups had considerable impact on the legal and institutional developments of this tribunal. The participants were mostly members of the ecclesiastical hierarchy and some of the higher lay magnates; by and large they were members of the ruling hierarchy.The property hearing had a long chain of development that reached into the late eight century: over the years it developed distinct procedures and instruments to record the results. These procedures reflect the interface of German and Roman law. We see in the history of this court the development of thoughts about evidence, the validity of written instruments as witnesses, and the role of judges as investigators.     

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.     

Legal Liberalism,Statutory Despotism and State Power in Early Twentieth-Century South Africa

This article is about the attempts by pre- and post-Union (1910) South African governments to create effective sedition laws, partly directly to curb specific political opponents, but also to license and focus state intelligence-gathering activities. Supreme Court judges' adherence to a rule-of-law formalism in a succession of court cases both hindered and encouraged these attempts. I am particularly interested in how the courts' imposition of more rigorous standards of performance in the production of evidence eventually exceeded the state's bureaucratic capability and undermined officials' confidence in the instrumental value of the rule of law, leading administrators to enact legislation to suppress their political adversaries without reference to the courts. The judges' stance in this history was not one of progressive or sudden capitulation to the lawmakers' and executive's will, as is sometimes argued, but notably consistent throughout.     

Controlling Forum Choice and Controlling Policy: Congress,Courts and the IRS

Considerable scholarly attention has been paid to litigation and its influence on social and bureaucratic policy. One area of research has focused on interest group litigation. Another area of scholarship has shown that Congress encourages individual use of the courts to monitor and control bureaucratic behavior. In several areas of law, litigants have a choice of forum by deliberate legislative design, which is sometimes derided as “forum shopping.” Little attention has been paid to the dominant national political coalition's ability to encourage forum shopping through legislation and the appointment process. One area of law that the coalition can encourage forum shopping is in challenging tax audits. It can do so through implict legislative signals and the appointment process to influence litigants to sue the Internal Revenue Service in the forum that offers the litigant the greatest chance of success. Given the prominent role of courts in setting and determining policy and given the particular prominence of taxes and tax policy over the past three decades, whether and where tax litigants choose to sue is critically important to understanding the dynamics of both tax policy and tax enforcement, as well as public policy creation and change. To demonstrate the influence of political forces on tax forum choice, I compare tax and district court filings from 1994 through to 2000. I find that as the Tax Court and national political coalition become more conservative, more taxpayers sue in the Tax Court and this “forum shopping” choice is supported by the national political coalition.     

MINDING THE BUSINESS OF THE SUPREME COURT: SOME THOUGHTS ON THE EFFECTS OF THE JUDGES' BILL OF 1925*

Twice at least in the Court's first too centuries it has found itself inundated with litigation that has outstripped its abilities to process it. Congress has from time to time had to make adjustments in the Supreme Court's jurisdiction so that the court could cope with its caseload. These “reforms” are potentially quite, important., yet few scholars have studied the effects, intended and unintended, of them. This paper reviews and criticize the scholarship on the effects of one especially interesting reform, the Judges' Bill of 1925, Along the way I offer a number of suggestions ore offered on how social scientists might in the future go about studying the effects of judical-reform.     

The Odyssey Case: press,public opinion and future policy

The Odyssey Case refers to the dispute between Odyssey Marine Exploration Inc. (OME) and the Kingdom of Spain in the US courts to determine the ownership of more than 500,000 coins, as well as other artefacts, that OME recovered from a wreck‐site it had code‐named Black Swan. However, the process was much more than a dispute over the coins. It reflected many of the components involved in the protection of underwater archaeological heritage, especially when economic and political interests are at stake. Written from the perspective of an archaeologist working for the regional authority responsible for developing archaeological policy, this paper tries to assess the case's impact on future policy development.     

谈清宫皇帝后妃油画半身像

油画对于中国来说是一个外来的画种,经过美术史家多年的努力,它东传的时间和途径已然大致明确。但研究中还是有很多缺环。近些年来对清朝宫廷绘画实物及相关资料的发现,为欧洲油画东传的过程提供了更多的信息。本文通过对流传至今的清宫油画作品进行梳理,提出一些想法,或可补充关于"西画东渐"的叙述。     

Implementing the Regulation on Places of Worship in Indonesia: New Problems,Local Politics and Court Action

This article examines the local implementation of the national Joint Regulation 2006 on places of worship in Indonesia. It focuses on the case study of the Protestant Christian Batak Congregation, which became one of the first churches to successfully challenge the authority of a local leader to cancel its permit to build a church. I begin by exploring the history of the regulation of permits for places of worship in Indonesia and the various proposals for law reform that have been put forward since 1998. I then outline the provisions of the new Joint Regulation and highlight the ongoing problems for religious minorities at the local level because of the failure of local authorities to implement the national regulation. I will demonstrate how religious minorities are challenging the decisions of local authorities by complaining to independent watchdogs, taking court action and using the political process. In conclusion, I argue that the Protestant Christian Batak Congregation court case is part of a broader trend for local authorities to use conflict over places of worship as an opportunity for political gain in the highly competitive political atmosphere since the downfall of Suharto in 1998.     

Regulating interpersonal debt in the bishop's court of Carpentras: litigation,litigators and the court, 1486 and 1487

Using notarial records, this article explains who sued whom at the bishop's court at Carpentras, why they did so and how the court managed people and their debt disputes. In 1486 and 1487, creditors pursued 240 suits over unpaid loans (about three-quarters of the court's business). Litigants spanned the social spectrum and included both Christians and Jews, suggesting that the court was well embedded in the local economy. This diversity, as well as the predominance of ‘horizontal lending’, matches regional trends. Drawing upon anecdotal evidence and quantitative work, the court's procedures, functions and appeal are explained. Since most loans were made orally, proving their existence was difficult. Cases rarely reached rulings and creditors could not expect from ecclesiastical judges the coercive innovations adopted by secular courts. Yet, this church court was a popular forum to authenticate debts, pressure debtors into confession and encourage peaceful, private concords.     

“激励教学法”在中学生物教学中的运用

教育是门艺术。俗话说“兴趣是最好的老师”,而如何使学生在学习过程中能愉快的学习是需要技巧的。通过对激励教学学法的研究,以及作者对此方法的尝试,认为在中学生物教学中施行“激励教学法”会使我们收到较好的教学效果。     

Adversarial Map-Making in Pre-Reformation Lancashire

Abstract

'Adversarial Map-Making in Pre-Reformation Lancashire'. A map in the National Archives dated to 1531 showing part of the Fylde in Lancashire has been published on several occasions; but its relationship to another map in the National Archives has not previously been recognised. These two maps were made by the opposing parties in a dispute before the court of the Duchy of Lancaster, and may be the earliest examples of adversarial map-making in a case before an equity court. The case concerned land which had apparently long been regarded as intercommon, but which was now being claimed to be in exclusive ownership. The newly recognised map was made to illustrate recently acquired documentary evidence as to the ownership of the land in question. This map appears broadly trustworthy, and was accepted as such by the court; but the defence map seems rather to have been designed to mislead. In recent years the defence map has been regarded as evidence for the appearance of the locality concerned in the 1530s, but this study shows that it was in fact regarded by the court as unreliable, thus highlighting the need to treat all maps other than those actually commissioned by the courts themselves as partial and therefore suspect.     

A trade balance: litigation and negotiation in the World Trade Organization's dispute settlement system

The establishment of the World Trade Organization (WTO) has been widely accepted as representing the legalisation of world trading rules. However, it is important to reflect on the limits of this legalisation thesis in terms of the interface between international and domestic policy processes. By locating trading disputes in a political analysis of policy implementation, it is argued that it is difficult to establish conceptually how the WTO dispute settlement system could have authority separate from and above the conventional international politics of trade policy relations. Instead, the article argues that case outcomes should be expected to be largely the product of domestic political institutions and policy processes, and how these intersect with developments in the WTO dispute settlement system. Brief studies of the Australian government's dispute settlement strategy and two high-profile WTO disputes—the US upland cotton and European Union sugar cases—serve to suggest that the authority of international trade law is not as significant as assumed by the legalisation thesis. Rather, domestic politics and institutions have an important impact on the outcome of trade disputes.     

Back in their proper place:: racial gerrymandering in Georgia

During this decade the United States Supreme Court has made significant rulings on constitutional challenges to representative districts purposefully drawn to empower minorities as district majorities. Arguments have set the Voting Rights Act against the Fourteenth Amendment's goal of a colorblind society. The court has generally struck down the aggressive drawing of majority–minority districts, finding them racial classifications not narrowly tailored to achieve compelling state interests. This study analyzes and evaluates these legal developments, principally through a focus upon the most recent litigation in Georgia. My thesis — that the Court has muddled the jurisprudence of representation, voting rights and racial equality because of its inability to treat politics and geography with consistency, depth, rigor and judgment — will be explored in connection with five questions. First, can compact and regular shape provide the courts with a concept to properly assess the legal issues without involving the courts in intractable and injudicious political questions? Second, does a bizarrely shaped district “broadcast” such an invidious racial message as to constitute a “stigmatic harm” which provides plaintiffs with standing to challenge the district? Third, is a district's bizarre shape critical evidence of the districters' intent to discriminate? Fourth, is “community of interest” a significantly richer criterion than shape for evaluating racial gerrymandering claims and defenses? Fifth, what is the proper legal role of traditional criteria of territorial representation as the benchmarks for distinguishing permissible from impermissible race-conscious districting?     

Land,Law and Courts in India: Tracing Land Rights Debates through Processes of Judicial Decision Making

The pace of industrial and allied infrastructure development in India is encumbered by scarcity in the supply of land. As a result, the state in India has frequently resorted to expropriation of land through conversion of land away from its traditional uses and through displacement of communities. Consequently, land acquisition in the country is mired in disputes over human rights and environmental rights violations. In the face of continued political support for infrastructure‐led development in India, those who stand to lose their land have often resorted to judicial recourse for pressing their rights. This article draws on empirical evidence from court cases related to two urban development projects in the states of Karnataka and Kerala to examine how courts have responded to the question of violation of land rights and appeals against land acquisition for the two projects. The author argues that the courts, while responding to the claims against the two projects, have refrained from holding the implementing agencies or the state governments accountable even in cases where there were recognizable incidents of malfeasance. The article illustrates that the inability of the courts to confront the state lends a tacit assent to the development agenda of the state.     

Australia's decision to initiate Whaling in the Antarctic: winning the case versus resolving the dispute

On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.