bluuebunny/crossref_metadata_2025_split huggingface dataset:
Rewrite Copyright: Protecting Creativity and Social Utility in the Digital Age
Authors: Chused Richard H. 
Published: February 2016

Debate about the impact of modern technology on copyright law has become polarized—even harsh. Owners, with some justification, contend that copying has become too easy and that strong protections for their assets must be implemented in order to insure the continued production of creative work. Users respond, with some justification, that such strong protections place intolerable constraints on their rights to browse in digital space, of contemporary culture and fairly use copyright works. The form of the debate—with both sides raising valid problems and neither finding an easy solution inside the existing structure of copyright law—suggests a need to rewrite copyright to insure remuneration to copyright owners while still providing easy, cheap access for users.The most viable method for achieving such a goal is to institute a wide ranging system of levies on all devices and media that make it possible to quickly and easily copy protected copyright subject matter. In return for the payment of levies, owners would be required to allow users undisturbed access to their copyrighted works. This paper uses the sometimes checkered history of American copyright law as a vehicle for discussion of the problems technology presents to contemporary intellectual property law, the need for a levy system, the most significant requirements of a levy system and the nature of objections likely to arise to use of such a system.
Relaxed Formalism: The Validation of Flawed Wills
Authors: Menashe Doron 
Published: February 2016

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.
Double Effect and Double Intention: A Collectivist Perspective
Authors: Zohar Noam J. 
Published: February 2016

I find myself in agreement with much of Jeff McMahan's analysis. Yet I have argued in the past (initially against Judith Jarvis Thomson, but also against McMahan) that it is insufficient, and misleading, to think about warfare and its moral assessment in merely individualistic terms. My disagreements with McMahan's discussion here are mostly linked to the same fundamental reservation.McMahan describes a clear-cut dichotomy between the individualist perspective— which he endorses—and collectivist approaches. These he characterizes as recognizing (in warfare) only collective moral agency, precluding individual responsibility. But in my view, we should reject this very dichotomy and adopt instead a dual moral perspective. Our focus should not be exclusively on individual choice, action, and responsibility: This should be combined with a collective perspective. In my comments here I will illustrate this by examining McMahan's discussion of terrorism and intention. I hope thereby to show that the description of warfare as a set of individual acts must be supplemented by its description as a conflict between collectives—between nations acting through their respective armies.
The Decline, but not Demise, of Multiculturalism
Authors: Rubinstein Amnon 
Published: February 2016

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20thcentury. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.
Zedaqà: Pursuit of Justice and the Instrument of ‘Ius Talionis’
Authors: Piattelli Daniela 
Published: February 2016

Much has been written on the law of retaliation, both by the specialists who studied the sources of the Ancient Near East that are different from Israel and by those who made Israel the subject of specific studies.Among those who may be numbered in the first group, we shall quote Cardascia. Among his most recent studies connected with the subject considered, we shall mention: “Réparation et peine dans les droits cunéiformes et le droit romain”, in La responsabilité à travers les âges, ed. par M. Boulet-Santel, (Paris, 1989) 1–45; “La peine dans les droits cunéiformes”, in (1991) 55 Rec. de la Société J. Bodin 37–49. But the most incisive study, on which we shall dwell at length, is: “La place du talion dans l'histoire du droit pénal à la lumière des droits du Proche-Orient ancien”, in Mélanges J. Dauvillier (Toulouse, 1979) 169–183.
Rutilia's Lake
Authors: Mayer-Maly Theo 
Published: February 2016

The Lago di Bracciano is a lake in Southern Etruria with a surface of 57.5 square kilometers. Its maximum length is 9.3 kilometers. The width goes up to 8.7 kilometers. The extent of the lake is 31.5 kilometers. Its water originates in part from some small rivers, and in part from underground springs. The lake is situated in a volcanic area, a fact which is important in our case.The Romans called the Lago di Braccianolacus Sabatinus. We find the lake referred to by this name on the tabula Peutingeriana. Collumella mentions the lake in his workDe re rusticain the chapter on pisciculture. He points out that due to farmers' care some lakes have sea-fish, which can stand fresh water:Inde Velinus, inde etiam Sabatinus, item Volsiniensis et Ciminius lupos auratasque procreaverunt, ac si qua sunt alia piscium genera dulcis undae tolerantia.
Israel and the United Nations' Human Rights Agenda: The Inequality of Nations Large and Small
Authors: Bayefsky Anne F. 
Published: February 2016

The Charter of the United Nations proclaims the equality of nations large and small. Nowhere is this principle violated more than in the case of Israel. And nowhere is the inequity more malevolent than in the U.N. human rights system. Reasonable and equitable treatment of a multiplicity of human rights claims throughout the world ought to be one of the hallmarks of United Nations actions. It is not. Instead, for Israel's foes human rights is the rhetorical weapon of choice. And the stage for their campaign is the United Nations. Neither the medium, nor the strategy has changed since the signing of the Oslo Declaration of Principles or the subsequent agreements on the West Bank and Gaza Strip.To well-meaning human rights advocates around the world the United Nations provides a source of hope, a channel for their energies, a vehicle for their causes. Their very presence invests the U.N. human rights fora with an air of legitimacy and an aura of power. The environment is beguiling both to observers and political participants. But looking beyond the hundreds of resolutions, the thousands of pages of paper in six languages, it is possible to expose the malignant nature of the United Nations human rights system.
Complicity
Authors: Fletcher George P. 
Published: February 2016

Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.
Obedience to Superior Order and Corporal Punishment as an Educational Method
Authors: Amelung Knut 
Published: February 2016

My lecture deals with three loosely connected topics, which are treated together in German textbooks.1. Acts authorized by law as mentioned in article 49, section 1, of the draft.2. Acts on the order of an authority, as mentioned in article 49, section 2, of the draft.3. Acts for the purposes of education, as mentioned in article 49, section 5, of the draft.Initially, a German scholar would be tempted to view the provision in article 49, section 1, as redundant. From a German point of view, it is evident that someone, who is authorized by law to act in a certain way, does not do so unlawfully. One of the first principles German students learn in their criminal law lectures, is that every act permitted by statute is in effect the justification of what is by definition a criminal offence. This is derived from a principle, which we call “unity of law”. This means that there may not be any contradictions in the law, and that an act permitted by it cannot also be forbidden by criminal code.
Mistake of Law
Authors: Neumann Ulfrid 
Published: February 2016

The relevant section of the Israeli draft concerning “Mistake of Law” reads as follows:For the purposes of criminal liability, it is immaterial whether a person, owing to a mistake as to the existence or meaning of a penal enactment, imagines that his act is not prohibited, unless the mistake could not reasonably have been avoided.The corresponding section of the German Criminal Code (StGB) concerning mistake of law (§ 17) reads as follows:If the perpetrator, when committing the act, lacks the insight into his wrong-doing, he is not criminally liable if this mistake was unavoidable. In case, this mistake was avoidable, the punishment can be mitigated according to § 49, sec. 1.
Sanctioning Policy in Israel — An Historical Overview
Authors: Sebba Leslie 
Published: February 2016

The sanctioning policy of a given society may be analysed on a number of levels. It may focus on the actions of the legislative body in the adoption of statutes, or on the legislative and administrative measures taken by the ministers and policy-makers who derive their formal powers from such statutes. Alternatively it may focus on the decisions of the courts, either by examining these on a statistical level or by analysing the content (the rhetoric as well as the substance) of their decisions. The present article will focus primarily upon the legislative policies of the Knesset in the matter of sanctions since the establishment of the state.Before beginning the analysis of legislative policy in this area, two preliminary observations may be made regarding the informal constraints influencing the formulation of legislative policy in relation to the penal system during the formative years of the state.
Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining
Authors: Feeley Malcolm M. 
Published: February 2016

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.
Improving the Position of the Victim in English Criminal Procedure
Authors: Spencer John R. 
Published: February 2016

In this paper I shall try to do two things: first, for those who do not have a detailed knowledge of criminal procedure in England, I shall give a bird's-eye view of what the victim's legal position is today. Secondly, I shall examine the difficulties, theoretical and practical, which make it hard to give the victim the deal which many of those who claim to speak for victims believe they ought to have.In the last twenty years the victim, for long the “forgotten man” in the criminal justice system, has been rediscovered. Politicians of all parties have learnt that victims, and those who identify with them, have votes, and therefore need to be placated. Up to now, however, this has mainly been done by words rather than deeds.An example is the document rather grandly entitled “The Victim's Charter”, which the Government issued in 1990 (with a revised version in 1996). Contrary to what the title “Charter” might lead one to suppose, this document confers no rights or privileges, but merely lists the ways in which the various parts of the machinery of criminal justice ‘ought’ to be sensitive to the position of the victim.
Protection of Victims in Rape and Sexual Abuse Cases in the Netherlands
Authors: Nijboer J.F. 
Published: February 2016

In general, the Dutch codification of Criminal law is constructed on the basic divisions that can be found in most Civil Law jurisdictions. The substantive law and the procedure are regulated in two separate Codes: the Penal Code (Wetboek van Strafrecht) and the Code of Criminal Procedure (Wetboek van Strafvordering). The present Penal Code came into force in 1886; the present Code of Criminal Procedure in 1926. Both Codes have been reformed often, but their basic features have been preserved.The Code of Criminal Procedure regulates the due course of the procedure as a chronological sequence of investigations and decisions. A trial before a District Court (arrondissementsrechtbank), which sits as a chamber of three judges (meervoudige kamer), serves as a model for the manner in which trials must proceed. Most of its provisions are also applicable to trials before other Courts, such as those before the Court of Limited Jurisdiction (kantongerecht); the District Court with a single judge sitting alone in simple cases; the District Court, which handles appeals from the Court of Limited Jurisdiction; and the Court of Appeal, which handles appeals from the District Court.
The Samaritans in Justinian's Corpus Iuris Civilis
Authors: Rabello Alfredo Mordechai 
Published: February 2016

Justinian, in hisCorpus Iuris Civilis, showed great interest in the Samaritans, in the context of his lifelong effort to make Orthodox Christianity the prevailing faith of the Roman empire. In general, Justinian's relationship to non-Catholic religions was one of discrimination and degradation. The Samaritans were subjected to especially harsh treatment and repressive legislation, due to their sanguinary rebellions. This cycle of repression and rebellion had dire economic consequences in Palestine for the entire general population, including Christians, and contributed to the general population's dissatisfaction with Imperial policy.In the Theodosian Code, the first official collection of Imperial constitutions, Samaritan-related legislation was grouped together with legislation related to Jews and Caelicolae, in the general context of the relationship between the Empire and the Church.
Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Basis and Post-Modern Tendencies
Authors: Englard Izhak 
Published: February 2016

In the 1939 edition of Meyers Lexikon the following item appears:Kelsen, Hans, Staatsrechtlehrer, Jude, * 11.10.1881 Prag, 1919 Prof. in Wien, 1930 in Köln, 1933 in Genf, seit 1936 in Prag, schrieb u. a. ≫Allg. Rechtslehre≪ 1925, ≫Théorie générale du droit international≪ 1932, ≫The legal process and international order≪ 1934; radikaler Vertreter der ≫Reinen Rechtslehre≪, die typischer Ausdruck jüdisch zersetzenden Geistes in der Nachkriegszeit auf dem Gebiete der Rechts- und Staatslehre ist. In der völligen Entleerung seiner allg. Formalbegriffe von jedem Wirklichkeitsgehalt leugnet K. jede Substanz des Rechts und Staats. Seine gemeinschaftszerstörenden Auffassungen stehen als polit. Nihilismus im schärfsten Gegensatz zur nat.-soz. Anschauung. Heute noch in der rechtsphilos. Logistik nachwirkend.
A Brief History of the New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”
Authors: Mandel Michael 
Published: February 2016

The Italians have a word for what I want to say about modern constitutionalism: “gattopardesco,” that is “leopardesque”, not as in the animal but as in the novelThe Leopardby Tomasi di Lampedusa. The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:You're crazy, my son. To go and put yourself with those people … a Falconeri must be with us, for the King.
Blind in the Right Eye: Weimar as a Test Case
Authors: Zimmermann Moshe 
Published: February 2016

The most frightening debacle of democracy is not caused by a revolution or a coup d'etat but by the creeping process of delegitimization, in which the Giant's leap (“Quantensprung”) is hardly conceivable. The most notorious example to date is the Weimar Republic, as the German Reich was called between 1918/9–1933. This example has served as a constant warning for all democratic systems since then, and is therefore always present and relevant.It is not for a social or cultural historian to intervene in a purely professional discussion of jurists or legal historians concerning the question of constitution, law and democracy. His aim is to concentrate on the complex relationship between the social and cultural contexts and the constitutional text and subtext.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M. 
Published: February 2016

On February 24, 1998, the government submitted the International Treaties (Approval by the Knesset) Bill, 1998 to the Knesset. This governmental bill represents the culmination of fifty years of exchange between the Executive and the Legislature concerning the constitutional authority to conclude international agreements on behalf of the State of Israel.Normally, it would have been preferable to await the completion of the enactment process before commenting on the new legislative arrangements. Due to the constitutional importance of the Bill and the fact that it raises several important questions, the regular practice will be abandoned in this case.Despite the availability of an abundance of materials on the treatymaking practice of the State of Israel and the status of treaties under municipal Israeli law both in English and in Hebrew, an in-depth analysis of the Bill requires an extensive expositionde lex lataon both these questions. Only then will the provisions of the Bill be presented. This will take the form of an issue-by-issue analysis, with conclusions drawn in each segment. The review will conclude with several additional observationsde lege ferenda.