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Planning for Law as a Career and an Enterprise 法律作为职业和企业的规划
Pub Date : 2013-01-01 DOI: 10.2139/ssrn.2271200
R. Baker
If you are a law student concerned and unsure about what happens after graduation, and still trying to sort your preferred professional role, this article is designed to help you do homework on both yourself and the legal profession so that you can enhance your opportunity to find the right professional role. The premise of the article is that a career in law is something for which you can and should prepare, just as you prepare for oral argument in court by writing a well-researched and thorough legal brief. The article is based on a course offered by the author at Suffolk University Law School in which students examine themselves and opportunities within the profession to find a career that fits them, and how they might make it a reality.
如果你是一名法律系学生,不确定毕业后会发生什么,还在努力挑选自己喜欢的职业角色,这篇文章旨在帮助你做好自己和法律职业的功课,这样你就能增加机会找到合适的职业角色。这篇文章的前提是,法律职业是你可以而且应该准备的,就像你准备在法庭上进行口头辩论一样,你要写一份经过充分研究和彻底的法律摘要。这篇文章是基于作者在萨福克大学法学院开设的一门课程,在这门课程中,学生们审视自己和行业内的机会,找到适合自己的职业,以及他们如何将其变为现实。
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引用次数: 0
Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy 以诉讼立法:对竞选财务政策司法审查的理解
Pub Date : 2012-07-16 DOI: 10.2139/SSRN.2109364
R. Curry
Campaign finance law presents quite a puzzle: it is an area of federal policy very closely tied to the interests of incumbents in the political branches, and yet it is controlled to a great extent by unelected federal court judges. While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law. Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law? This article examines the role of political leaders in judicializing campaign finance policy. In a survey of nearly a century of law, and in a close analysis of the legislative record, I make a number of surprising findings. I discover that there has been great variation in judicial review over this history and that it correlates directly with the choices activists and political leaders have made to mobilize legal institutions in the making of campaign finance policy. Moreover, I find that political leaders have maintained the upper hand in this: where the efforts of independent policy activists ran counter to their interests (as they did for a brief period prior to Watergate), legislators quickly changed jurisdiction rules to foreclose the groups’ access to federal courts. But, even as they restricted public interest litigation in the field, legislators actually moved to judicialize the policy still more – and continued to do so even after the Supreme Court substantially altered the law with its Buckley v. Valeo ruling. In fact, from 1974 onward, the judiciary’s power to interpret, enforce and, ultimately, remake policy has been deliberately delegated to it by Congress. This history reveals that campaign finance reform has long been a process of making law with lawsuits, where courts enjoy significant discretion to revise policy not primarily because of their own activism, but because political leaders have given them the job.
竞选财务法提出了一个相当令人困惑的问题:这是一个与政治部门现任者的利益密切相关的联邦政策领域,但它在很大程度上受到未经选举的联邦法院法官的控制。虽然我们倾向于认为,第一修正案的考虑推动了司法审查,但学者们尚未解释政治领导人首先决定建立联邦法院管辖权,允许挑战或执行法律的诉讼。会不会是国会花了大力气制定法规来规范选举中的金钱使用,却对法院如何以及在多大程度上审查法律只字未提?本文考察了政治领导人在竞选财政政策司法化中的作用。在对近一个世纪的法律进行调查和对立法记录进行仔细分析后,我得出了许多令人惊讶的发现。我发现,在这段历史中,司法审查有很大的变化,这与活动家和政治领导人在制定竞选资金政策时动员法律机构的选择直接相关。此外,我发现政治领导人在这方面一直占据上风:当独立政策活动人士的努力与他们的利益背道而驰时(就像水门事件发生前的一段短暂时期一样),立法者迅速改变了司法规则,禁止这些团体诉诸联邦法院。但是,即使他们限制了该领域的公益诉讼,立法者实际上还是进一步将该政策司法化了——甚至在最高法院通过巴克利诉法雷奥案对法律进行了实质性修改之后,立法者仍在继续这样做。事实上,从1974年起,司法部门解释、执行并最终重新制定政策的权力就被国会有意授权给了它。这段历史表明,竞选资金改革长期以来一直是一个通过诉讼制定法律的过程,法院在修改政策方面享有很大的自由裁量权,主要不是因为它们自己的行动主义,而是因为政治领导人给了它们这项工作。
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引用次数: 1
Promise and Private Law 承诺与私法
Pub Date : 2011-08-09 DOI: 10.2139/SSRN.1907142
Nathan B. Oman
This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried’s Contract as Promise and revisits Fried’s theory in light of two developments in the private law scholarship: the rise of corrective justice and civil recourse theories. The structural features that motivate these theories – the bilateralism of damages and the private standing of plaintiffs – are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies – in particular the defense of expectation damages – occupy much of Fried’s attention in Contract as Promise, and he insists that this particular remedial response flows from a commitment to promissory morality. I am skeptical of this claim and seek to show the implausibility of grounding compensatory damages in a duty to keep a promise. Rather, to explain this feature of contract law the duty to keep a promise must be joined with principles of corrective justice. I next turn to the issue of private standing. First, I seek to demonstrate that our plaintiff-centered system of contract law is a genuine puzzle. We cannot dismiss the issue of private standing as a pragmatic and ad hoc response to problems of enforcement. Rather, I argue that a better candidate can be found in the work of civil recourse theorists who seek to elucidate the value of victims in a liberal society holding wrongdoers accountable for their wrongs. Finally, I address some of the problems associated with the arguments presented in this essay. How exactly do promissory morality, corrective justice, and civil recourse relate to one another? My conclusion is that at best there is an uneasy and ill-defined relationship between these different goals. On the other hand, I hope to show that promissory theories of contract nevertheless must take the issue of private law seriously. The bilateral structure of liability and the system of private standing are major institutional features whose existence must be acknowledged and accounted for in future efforts to defend a promissory vision of contract.
本文是查尔斯·弗里德《契约即承诺》出版三十周年研讨会的一部分,并根据私法学术的两个发展:纠正正义和民事追索权理论的兴起,重新审视了弗里德的理论。激励这些理论的结构特征——损害赔偿的双边主义和原告的私人地位——都是《合同即承诺》试图解释的合同法的要素。我从双边主义问题开始。救济——尤其是对预期损害的辩护——占据了弗里德在《契约即承诺》一书中的大部分注意力,他坚持认为,这种特殊的补救反应源自对承诺道德的承诺。我对这种说法持怀疑态度,并试图证明将补偿性损害赔偿作为履行承诺的义务是不合理的。相反,为了解释合同法的这一特征,履行承诺的义务必须与纠正性正义原则结合起来。我接下来谈谈私人地位的问题。首先,我试图证明我们以原告为中心的合同法制度是一个真正的难题。我们不能把私人地位的问题视为对执法问题的务实和临时反应而不予考虑。相反,我认为,更好的候选人可以在民事追索权理论家的工作中找到,他们试图阐明自由社会中受害者让不法行为者对其错误负责的价值。最后,我解决了与本文中提出的论点相关的一些问题。承诺道德、纠正性正义和民事追索权究竟如何相互关联?我的结论是,这些不同的目标之间充其量只是存在一种令人不安的、不明确的关系。另一方面,我希望表明,尽管如此,契约的承诺理论必须认真对待私法问题。双边责任结构和私人诉讼制度是主要的制度特征,它们的存在必须得到承认,并在今后捍卫合同的承诺愿景的努力中加以考虑。
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引用次数: 0
The Communist Party & the Law: An Outline of Formal and Less Formal Linkages between the Ruling Party and the Other Legal Institutions in the People's Republic of China 共产党与法律:中华人民共和国执政党与其他法律制度的正式与非正式联系概述
Pub Date : 2009-05-14 DOI: 10.2139/SSRN.1405003
Manuél E. Delmestro
This paper, roughly belonging to the comparative public law field, investigates the concrete links, formal, quasi-formal and substantial interactions, functional and organic compenetrations occurring amongst legal and political actors in the Chinese Party-State System.The legal position enjoyed by the ubiquitous Communist Party within the political-legal system of the PRC. A description is provided on how the status of the Party and the Socialist System - the protecting and enveloping skull within which the Party-brain operates - has been modified and re-engineered, and sometimes formalized throughout a broad set of norms (constitutions, political documents, system-laws, ordinary laws, administrative regulations, case law) since the establishment of the PRC in 1949 and particularly during the Deng, Jiang and Hu eras.The political-legal means used by the Party to operate as an organism innervating its parent-body i.e. the PRC institutional system. Attention is focused both on the statutory well-known organs that constitute the Party apparatus and on the less known and often neglected chains of transmission and ad hoc organisms a structures (Leading Small Groups, organic committees, Party groups, the nomenklatura etc) operating as traits d’union between Party, State (People’s assemblies, government/executive, military & security forces, judiciary), civil society and businesses, and carrying the Party’s will and impulse to the peripheral layers of the System.Party’s Legal Creativity. In discussing the greater Rule of Law topic, the question of how laws themselves are created and by whom is often forgotten. While looking at this issue and considering that in the CPC-ruled Socialist Legal System State rules are created according to CPC rule development, the question then becomes whether a new legal category is needed to conceptualize CPC regulations. The CPC has a complex corpus of internal rules, and the production of party norms and regulations comes through the CPC Interim Regulations on the Procedure for Establishing Internal Party Regulations, an internal legislation law established in 1990, about 10 years prior to the national Legislation Law. As the normative framework for Inner Party Rule of Law existed prior to State Rule of Law, there is indeed a need of conceptualization of CPC rules, and a possible complement to the notion of binding ‘normative’ rules of State would be to consider their alter ego, the soft CPC rules, as ‘nomopoietic’, or rule-creating rules for the State.
本文大致属于比较公法领域,研究中国党国体制中法律和政治行为体之间的具体联系、正式的、准正式的和实质性的相互作用、功能的和有机的补偿。无处不在的共产党在中华人民共和国政法体系中享有的法律地位。本文描述了自1949年中华人民共和国成立以来,特别是在邓、江、胡时代,党和社会主义制度的地位——保护和包裹着党的大脑运作的头骨——是如何被修改和重新设计的,有时是如何通过一套广泛的规范(宪法、政治文件、制度法律、普通法、行政法规、判例法)来正式确定的。党作为支配其母体即中华人民共和国制度体系的有机体而运作的政治-法律手段。人们的注意力既集中在构成党的机构的法定知名机构上,也集中在不太为人所知和经常被忽视的传播链上,以及作为党、国家(人民议会、政府/行政部门、军事和安全部队、司法部门)、民间社会和企业之间的联盟特征而运作的特设组织和结构(领导小组、有机委员会、党组、命名机构等)上。把党的意志和冲动传递到体制的外围。党的法律创造力。在讨论更广泛的法治话题时,法律本身是如何制定的以及由谁制定的问题往往被遗忘。考虑到这个问题,并考虑到在中国共产党统治的社会主义法律体系中,国家规则是根据中国共产党的规则发展而制定的,那么问题就变成了是否需要一个新的法律类别来概念化中国共产党的法规。中国共产党拥有复杂的内部规则体系,党内规范和规章的产生是通过1990年制定的《中国共产党党内规章制定程序暂行条例》,这是一部内部立法法,比国家立法法早了大约10年。由于党内法治的规范框架先于国家法治而存在,因此确实需要对中共规则进行概念化,而对具有约束力的国家“规范性”规则概念的可能补充将是考虑它们的另一个自我,即中共软规则,作为国家的“规范”或规则创造规则。
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引用次数: 0
Bearing False Witness: Perjured Affidavits and the Fourth Amendment 作伪证:伪证宣誓书与第四修正案
Pub Date : 2006-11-21 DOI: 10.2139/SSRN.946476
S. Gard
The purpose of this Article is to articulate appropriate legal doctrine to govern the problem of false statements of fact by law enforcement officers in warrant affidavits. This Article addresses the issue in the context of actions brought pursuant to 42 U.S.C. § 1983 to redress such Fourth Amendment violations. This perspective promises to be interesting and unique for two reasons. First, the fact that the guilty are ordinarily the direct beneficiaries of the Fourth Amendment has long been a matter of grave concern. In contrast, rarely, if ever, will anyone except an innocent victim of a search based on a perjured warrant affidavit be able to maintain a successful action asserting this particular Fourth Amendment violation. Second, a police officer who files a false affidavit in support of a warrant application, unlike any other defendant in a § 1983 case, is not entitled to the protection of any of the immunity doctrines which protect police officers in most cases from legal liability.
本条的目的是阐明适当的法律原则,以管理执法人员在手令宣誓书中虚假陈述事实的问题。本条在根据《美国法典》第42编第1983条为纠正此类违反第四修正案的行为而提起的诉讼的背景下处理该问题。由于两个原因,这种视角注定是有趣和独特的。首先,罪犯通常是第四修正案的直接受益者这一事实长期以来一直是一个令人严重关切的问题。相比之下,除了基于伪证宣誓书的搜查的无辜受害者之外,很少有人能够成功地主张这一特定的违反第四修正案的行为。第二,与§1983案件中的任何其他被告不同,为支持搜查令申请而提交虚假宣誓书的警官无权受到在大多数情况下保护警察免于承担法律责任的任何豁免原则的保护。
{"title":"Bearing False Witness: Perjured Affidavits and the Fourth Amendment","authors":"S. Gard","doi":"10.2139/SSRN.946476","DOIUrl":"https://doi.org/10.2139/SSRN.946476","url":null,"abstract":"The purpose of this Article is to articulate appropriate legal doctrine to govern the problem of false statements of fact by law enforcement officers in warrant affidavits. This Article addresses the issue in the context of actions brought pursuant to 42 U.S.C. § 1983 to redress such Fourth Amendment violations. This perspective promises to be interesting and unique for two reasons. First, the fact that the guilty are ordinarily the direct beneficiaries of the Fourth Amendment has long been a matter of grave concern. In contrast, rarely, if ever, will anyone except an innocent victim of a search based on a perjured warrant affidavit be able to maintain a successful action asserting this particular Fourth Amendment violation. Second, a police officer who files a false affidavit in support of a warrant application, unlike any other defendant in a § 1983 case, is not entitled to the protection of any of the immunity doctrines which protect police officers in most cases from legal liability.","PeriodicalId":82862,"journal":{"name":"Suffolk University law review","volume":"41 1","pages":"445"},"PeriodicalIF":0.0,"publicationDate":"2006-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67902862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A precarious balancing act--the role of the FDA as protector of public health and industry wealth. 这是一种危险的平衡行为——FDA作为公众健康和行业财富保护者的角色。
Pub Date : 2003-01-01
Alison R McCabe
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引用次数: 0
Protectionism and freedom of contract: the erosion of female autonomy in surrogacy decisions. 保护主义与契约自由:女性在代孕决策中的自主权受到侵蚀。
Pub Date : 2003-01-01
Jessica H Munyon
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引用次数: 0
The need to know versus the right to know: privacy of patient medical data in an information-based society. 了解的需要与知情权:信息社会中患者医疗数据的隐私。
Pub Date : 1997-01-01
R E Harris

"Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret."(1) "Safeguards to privacy in individual health care information are imperative to preserve the health care delivery relationship and the integrity of the patient record."(2) As early as the fourth and fifth centuries B.C., Hippocrates contemplated the importance of medical information to the care and treatment of patients. His oath suggests that privacy of a patient's medical information creates the foundation upon which a patient reposes trust in his or her physician. While defining the earliest version of the physician-patient privilege, the oath does not envision the extent of modern day access to healthcare information. A patient's relationship with the modern healthcare delivery system often includes a team of physicians, nurses, and other clinical support personnel. This relationship extends beyond direct caregivers and may include healthcare administrators, payor organizations, and persons unfamiliar with a patient's identity, such as researchers and public health officials. Accessing a patient's medical information links these participants to the patient's healthcare delivery relationship. The Hippocratic Oath does not contemplate such broad access, nor does it contemplate the emerging privacy crisis resulting from the application of computer technology to medical record storage and retrieval. The combination of broad access, individual privacy rights, and computer technology requires a rethinking of measures designed to protect the realities of the modern medical information society.

“无论什么,与我的专业实践有关,或者与它无关,我在人们的生活中看到或听到的,不应该在国外谈论的,我不会泄露,因为我认为所有这些都应该保密。”“保护个人医疗信息的隐私对于维护医疗服务关系和患者记录的完整性是必不可少的。”(2)早在公元前4世纪和5世纪,希波克拉底就考虑到了医疗信息对患者护理和治疗的重要性。他的誓言表明,病人医疗信息的隐私是病人信任他或她的医生的基础。虽然定义了最早版本的医患特权,但誓词并没有预见到现代医疗保健信息获取的程度。患者与现代医疗保健服务系统的关系通常包括医生、护士和其他临床支持人员的团队。这种关系超出了直接护理人员的范围,可能包括医疗保健管理人员、付款组织和不熟悉患者身份的人员,如研究人员和公共卫生官员。访问患者的医疗信息将这些参与者链接到患者的医疗保健交付关系。希波克拉底誓言没有考虑到如此广泛的访问,也没有考虑到计算机技术在医疗记录存储和检索中的应用所导致的新出现的隐私危机。广泛访问、个人隐私权和计算机技术的结合要求我们重新考虑旨在保护现代医疗信息社会现实的措施。
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引用次数: 0
Moral debate and semantic sleight of hand. 道德辩论和语义上的花招。
Pub Date : 1993-01-01 DOI: 10.1163/9789004301788_006
J. Bleich
If there is to be any meaningful discussion concerning public policy, it must begin with the most basic moral value—truth. So fundamental is truth that no moral system, and indeed no cognitive discipline, would be conceivable without the basic premise that truth be assumed as a meta-principle. The term “truth” is used in this context, not in the sense of truth-telling, but in the sense of truth-recognition. Every moral system that recognizes that, under certain conditions, communication of a falsehood is not only devoid of odium but constitutes a moral imperative. A maniac wishes to know which button, when depressed, will release a nuclear device. In that case, the morally mandated response is self-evident; in other situations the same clarity may not obtain. Truth-telling in the physician-patient relationship is a case in point. Curiously, or perhaps not so curiously, it is usually the physician who advocates full disclosure, while the ethicist may be quite prepared to clothe the lie with moral sanction. Although communication of a falsehood to another individual may be justifiable or even commendable at times, self-deception ought never be condoned. Consequently, recognition and acknowledgment of factual verities must constitute the first step in the formulation of public policy. Organ transplants and fetal tissue research designed to preserve human life are themselves entirely unobjectionable. Yet each involves an ancillary issue posing a significant moral problem which, in current debate, has become obfuscated by confusion with regard to matters that are entirely factual in nature.
如果要对公共政策进行任何有意义的讨论,就必须从最基本的道德价值——真理——开始。真理是如此的基本,以至于如果没有将真理作为元原则这一基本前提,任何道德体系,甚至任何认知学科都无法想象。在这种情况下使用“真相”一词,不是在说真话的意义上,而是在承认真相的意义上。每一种道德体系都认识到,在一定条件下,传播虚假不仅没有可憎之处,而且构成了一种道德要求。一个疯子想知道哪个按钮按下后会释放一个核装置。在这种情况下,道德强制的反应是不言而喻的;在其他情况下,可能无法获得同样的清晰度。医患关系中的实话实说就是一个很好的例子。奇怪的是,或者也许不那么奇怪的是,通常是医生主张充分揭露真相,而伦理学家可能很准备给谎言披上道德制裁的外衣。虽然向另一个人传播谎言有时是合理的,甚至是值得赞扬的,但自欺永远不应该被宽恕。因此,承认和承认事实真相必须是制定公共政策的第一步。为了保存人类生命而进行的器官移植和胎儿组织研究本身是完全不受反对的。然而,每一个都涉及一个附带问题,提出了一个重大的道德问题,在当前的辩论中,由于对本质上完全是事实的问题的混淆,这个问题已经变得模糊不清。
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引用次数: 2
Donohue lecture series: "Roe v. Wade: past and future". 多诺霍系列讲座:“罗伊诉韦德案:过去与未来”。
Pub Date : 1990-01-01
S Weddington
{"title":"Donohue lecture series: \"Roe v. Wade: past and future\".","authors":"S Weddington","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82862,"journal":{"name":"Suffolk University law review","volume":"24 3","pages":"601-20"},"PeriodicalIF":0.0,"publicationDate":"1990-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25215515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
期刊
Suffolk University law review
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