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华东政法大学 2014年考博英语真题(三)
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  华东政法大学 2014年考博英语真题(三)

  VIII. International law Legal concepts of domestic law profoundly influence the way how one approaches and conceptualizes international law. James Crawford has observed that ―it cannot be said too often that our thinking about law is infiltrated, marinated, drenched with the influence of national legal systems, with their characteristic ways of enforcing obligations and vindicating rights. We were all national lawyers first‖. That is surely right (although the trend towards specialization that erodes the authority of generalists might also eventually expunge the memory of the domestic origins of the invisible college). The domestic law perspective applies with particular force to international treaties that combine a consensual form, prima facie reminiscent of the structure employed in the domestic law of contracts, with a substantive breadth, prima facie extending beyond the legal relationships that would be addressed by the law of contracts in domestic law. A convenient point of departure is theproposition made by Arnold McNair as long ago as in 1930, contrasting the variety legal forms employed by the domestic legal order with the sparseness of form by which international law addressed substantively comparable legal relationships: The internal laws of the modern state provide its members with a variety of legal instruments for the regulation of life within that community: the contract; the conveyance or assignment of immovable or movable property, which may be made for valuable consideration or may be a gift or an exchange; the gratuitous promise clothed in a particular form; the charter or private Act of Parliament creating a corporation; legislation, which may be constituent, such as a written constitution, fragmentary or complete, or may be declaratory of existing law, or create new law, or codify existing law with comparatively unimportant changes. Further, though rarely, we may find a constitutional document which closely resembles the international treaty itself. If the debate is put in a historical perspective, it may be said that the appropriateness of domestic analogies has been debated in slightly differing terms by each succeeding generation of international lawyers. In the late 19th century, Heinrich Triepel drew the distinction between treaties analogous to contracts properly so-called, where the contractual parties pursued opposing interests, and the law-making treaties analogous to agreements, where the contractual parties pursued common interests. In the inter-War period, Hersch Lauterpacht dismissed any practical value of the distinction, and made a powerful argument of analogy between domestic contract law on the one hand and the law of treaties and particular treaty regimes on the other hand. Conversely, McNair made an equally powerful argument for a broader list of possible analogies from domestic law, shifting the attention to public law, and in particular cases showing scepticism about the value of relying on private law.

  69. James Crawford thinks that ( ) (a) the characteristic ways of enforcing obligations in national legal system decides the international legal system. (b) influence of national legal systems get into one’s thinking about law. (c) national lawyers can do things better. (d) international law is marinated by national law.

  70. Arnold McNair compared legal forms in domestic law with those of international law in 1930 and found that ( )

  (a) for substantively comparable legal relationships there were much less forms of international law. (b) international treaties resemble the structure employed in the domestic law. (c) the domestic law perspective applies with particular force to international treaties. (d) the gratuitous promise is clothed in a particular form.

  71. Heinrich Triepel made the distinction between ( ) (a) treaties and contracts. (b) international lawyers and domestic lawyers. (c) contractual parties. (d) different types of treaties.

  72. From the last paragraph, we can see that Hersch Lauterpacht and McNair ( ) (a) disagreed on the nature of international law. (b) both made analogies of international law to domestic law. (c) applied different methodology in analyzing the relation between international law and domestic law. (d) had different view in possible analogies.

  IX. Forensic Appraisal Many criminal procedure scholars who vaguely followed the King case had a hard time understanding what the fuss was about. Their position might be summed up by the majority’s assertion that ―DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson.‖ Considering that the FBI database contains over 100 million sets of fingerprints, and that it processed more than 61 million ten-print submissions in 2010 alone, this equation of DNA identification with fingerprint technology suggests a bright future for law enforcement’s DNA collection practices. So what difference would it make if police had million people’s genetic, rather than biometric, material? This Part addresses three misconceptions about forensic DNA typing that permeate the King opinion: first, that DNA typing will only be of concern to criminals; second, that the police will not probe sensitive or private genetic information, and that laws protect against misuse; and third, that collecting more DNA samples from known individuals will solve a lot of crime. In short, the prior Part argues that the King opinion can be read as an embrace of expansive forensic DNA testing. King might be viewed less as a statement about the legal status of DNA sampling than about the legal status of arrestees. It could be seen as simply a natural outgrowth of Samson v. California, the case that justified random searches of parolees without a warrant or suspicion based on their diminished status as subjects with conditional liberty. In this telling, King is not a declaration of general disinterest in genetic privacy, but simply an expression of the Court’s lack of solicitude for those entangled in the criminal justice system. But if what decided the issue for the Court was that arrestees deserve less protection than ―the average citizen,‖ then it seems that the Court could have rested its opinion on those grounds alone. In other words, the Court could have said, ―DNA testing is a serious and significant intrusion on bodily integrity. But the Constitution permits the state, with a compelling enough interest, to impinge on the most fundamental aspects of bodily privacy when it comes to arrestees. Thus, the Constitution permits the DNA sampling of an arrestee, despite the seriousness of the intrusion involved.‖ It could have walled off the opinion as a categorical exception that applies only to convicted offenders and arrestees, and declared the law-abiding public’s DNA out of bounds.

  73. From the first paragraph, one can know that fingerprint is ____ and DNA is _____ . ( ) 20 (a) genetic, biometric (b) biometric, genetic (c) genetic, genetic too (d) biometric, biometric too 74. Which one is NOT a misconceptions about forensic DNA typing ? ( ) (a) DNA typing will not be of concern to ordinary people. (b) The more DNA samples from individuals are collected, more crimes will be solved. (c) Police will not look into sensitive or private genetic information. (d) A lot of crimes will be solved if more DNA samples are collected from known individuals.

  75. The author thinks that the King case ( ) (a) is a statement about the legal status of DNA sampling. (b) a statement about the legal status of arrestees. (c) a case that justified random searches of parolees without a warrant. (d) is a declaration of general disinterest in genetic privacy.

  76. From which of the following can you see that the author thinks that the issue for the Court was not that arrestees deserve less protection than ―the average citizen‖? ( ) (a) DNA testing is a serious and significant intrusion on bodily integrity. (b) Constitution permits the DNA sampling of an arrestee. (c) The Constitution permits the state to impinge on the most fundamental aspects of bodily privacy. (d) The Court could have rested its opinion on those grounds alone.

  X. Political Science What difference does it make if more, or fewer, people vote? What difference would it make if the state makes people vote? These questions are central both to normative debates about the rights and duties of citizens in a democracy and to contemporary policy debates in a variety of countries over what actions states should take to encourage electoral participation. To address them, this paper focuses on the phenomenon of compulsory voting – legal requirements that compel citizens to participate. Specifically, by focusing on a rare case of abolishing compulsory voting in Venezuela, we examine whether compulsory voting reduces income inequality. Our results support a well-known proposition advanced by Arend Lijphart in his 1996 presidential address to the American Political Science Association. For Lijphart, class bias – ―the inequality of representation and influence… not randomly distributed but systematically biased in favor of more privileged citizens… and against less advantaged citizens‖ – is the central ―unresolved dilemma‖ of democracy. The normative foundation of this argument is that, in a democracy, the preferences of every citizen should have equal weight in electing representatives and determining policy. Lijphart contends that ―low voter turnout means unequal and socioeconomically biased turnout… [and] unequal participation spells unequal influence‖ , and that compulsory voting is ―the strongest of all the institutional factors‖ in its potential to remedy the pernicious effects of class bias in turnout.Despite its normative importance and practical relevance in policy debates, rigorous empirical scrutiny of Lijphart’s claim has been limited. Numerous scholars have investigated the impact of voter turnout on various outcome variables. Most of these studies, however, face methodological shortcomings because they are based on relatively simple cross-sectional regression without a convincing identification strategy for causal inference, or because they rely on instrumental variables based on exogenous ―shocks‖ to turnout (e.g. weather events) that are not relevant to how the level of voter turnout influenced by whether voting is compulsory or mandatory affects electoral and policy outcomes. Two recent studies address these methodological concerns. Fowler (2013) estimates the causal effects of the introduction of compulsory voting in Australia on election outcomes and pension spending. Similarly, Bechtel, Hangartner, and Schmid (2013) examine the effects of the introduction of compulsory voting in the Swiss canton of Vaud on the results of federal referendums. Both studies use an important change in the voting rule as leverage for causal inference, effectively examining the counterfactual question: What would have happened if the compulsory voting rule had not been introduced?

  77. From the first paragraph, we know that this paper is to discuss ( ) (a) normative debates about the rights and duties of citizens. (b) policy debates in a variety of countries. (c) whether compulsory voting reduces income inequality. (d) the phenomenon of compulsory voting.

  78. Mr. Arend Lijphart holds the following view but ( ) (a) In a democracy, the preferences of every citizen have equal weight in voting. (b) Class bias is the central ―unresolved dilemma‖ of democracy. (c) Low voter turnout means unequal and socioeconomically biased turnout. (d) Compulsory voting has its potential to remedy the pernicious effects of class bias in turnout.

  79. The weak point of the studies about the impact of voter turnout on various outcome variables is that ( ) (a) they are relatively simple. (b) they rely on instrumental variables. (c) they do not distinguish whether voting is compulsory or mandatory. (d) there is no convincing identification strategy for causal inference.

  80. Which statement about the studies of Fowler and Bechtel, Hangartner, and Schmid is NOT true? ( ) (a) They are both published in 2013. (b) They both examined the influence of compulsory voting on election outcomes. (c) They address the methodological concerns. (d) They both examine the question: What would have happened if the compulsory voting rule had not been introduced?

  XI. Intellectual Property Law Section 106 of the Copyright Act grants ―the owner of copyright under this title‖ certain ―exclusive rights,‖ including the right ―to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership.‖ These rights are qualified, however, by the application of various limitations set forth in the next several sections of the Act, §§107 through 122. Those sections, typically entitled ―Limitations on exclusive rights,‖ include, for example, the principle of ―fair use‖ (§107), permission for limited library archival reproduction, (§108), and the doctrine at issue here, the ―first sale‖ doctrine (§109). Section 109(a) sets forth the ―first sale‖ doctrine as follows:―Notwithstanding the provisions of section 106(3) [the section that grants the owner exclusive distribution rights], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.‖ Thus, even though §106(3) forbids distribution of a copy of, say, the copyrighted novel Herzog without the copyright owner’s permission, §109(a) adds that, once a copy of Herzog has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish. In copyright jargon, the ―first sale‖ has ―exhausted‖ the copyright owner’s §106(3) exclusive distribution right. What, however, if the copy of Herzog was printed abroad and then initially sold with the copyright owner’s permission? Does the ―first sale‖ doctrine still apply? Is the buyer free to bring the copy into the United States and dispose of it as he or she wishes? To put the matter technically, an ―importation‖ provision, §602(a)(1), says that ―[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies . . . of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies . . . under section 106 . . . .‖ Thus §602(a)(1) makes clear that importing a copy without permission violates the owner’s exclusive distribution right. But in doing so, §602(a)(1) refers explicitly to the §106(3) exclusive distribution right. As we have just said, §106 is by its terms ―[s]ubject to‖ the various doctrines and principles contained in §§107 through 122, including §109(a)’s ―first sale‖ limitation. Do those same modifications apply—in particular, does the ―first sale‖ modification apply—when considering whether §602(a)(1) prohibits importing a copy?

  81. Which word is closest in meaning to the underlined word ―qualified‖ in the first paragraph? ( ) (a) restricted (b) limited (c) eligible (d) certified

  82. From the second paragraph, one can know that the ―first sale‖ doctrine ( ) (a) permits owner of a particular copy to dispose of it as they wish. (b) is a copyright jargon that ordinary people do not use. (c) sets limitation to a copyright owner’s exclusive distribution right. 23 (d) forbids distribution of a copy of the copyrighted novel Herzog without the copyright owner’s permission. 83. What question is the author asking in the last paragraph? ( ) (a) Was the Herzog printed abroad and then sold with the copyright owner’s permission? (b) Is the buyer free to bring a copy into the United States and dispose of it as he/she wishes? (c) Does §602(a)(1) prohibits importing a copy? (d) Does the ―first sale‖ doctrine apply when a copy is initially sold abroad with the permission of the copyright owner?

  84. From the above paragraphs, we know that the statement of ___ is not true. ( ) (a) A copyright owner’s distribution right is unlimted. (b) §§107 through 122 contain various doctrines and principles limiting the rights conferred by §106. (c) §602(a)(1) grants a copyright owner importation right. (d) Copyrights conferred by §106 are not unlimited.

  XII. Sociology This paper investigates a unique feature of post 9/11 developments in law: the tacit circumvention of constitutional balancing, an otherwise core feature in jurisprudence, as well as in legislation, policy making and law enforcement. Balancing refers to the process of weighting how intrusive certain means are in comparison to the ends—provided of course, that the ends are legitimate. The concept of proportionality is corollary here: in order to assess the relationship between the means employed and the aims sought to be realized, one needs to asses three criteria: effectiveness, necessity, and the degree harm inflicted. However, in current political debates, when anti-terrorist law enforcement measures are involved, the long held golden rule for policy making has been replaced by another, substantially empty rhetoric: the inherently false dichotomy of the ―liberty vs. security-binary. The paper will have the anti-terrorist law enforcement measures in focus, but the rhetoric is sweeping: it has been extended to, copied in, and merged with crime control measures and immigration control as well. The uniqueness of this New World is, thus, twofold: First, new standards have been set up (required and accepted) for government activism in the sphere of curtailing freedom as an exchange for security. People (the political class, the electorate) appear to be willing to reformulate the traditional balance between liberty and security: a little bit more documents and ID-checks, longer lines and more flexible search-warrants seem an acceptable tax levied in return for more stringent demands for government-provided security. For example, once being convinced that we actually need to be searched and surveilled for aviation safety, for a faster process, we are willing to giving up some of our privacy and enter a full body scanner. It seems to be the case that there is a broad consensus on the fact that traditional policing principles or, for that matter, the law of the Geneva Conventions have become unsuited for handling the peculiar warfare put on by suicide bombers and terrorist organizations. Just about everywhere in the world, the war against terrorism has had the effect of widening the control functions of the national security and immigration services, as well as of other law enforcement authorities. The expanded measures and procedures thus introduced were often ones that legislators and law enforcement officialsotherwise only had dreamed of attaining, but this time around, they could take advantage of changes in the public sentiment due to society’s shock over the tragic events and fear spreading in their wake.

  85. The constitutional balancing is a core feature in the flowing BUT ( ) (a) law enforcement (b) policy making (c) jurisdiction (d) legislation

  86. What is the golden rule for policy making according to the author? ( ) (a) assess the relationship between the means employed and the aims sought to be realized (b) effectiveness, necessity, and the degree harm inflicted (c) liberty vs. security (d) constitutional balancing

  87. People appear to be willing to accept the following in return for more security, EXCEPT ( ) (a) more documents and ID-checks (b) longer lines (c) more flexible search-warrants (d) acceptable tax

  88. What is NOT a cause for introduction of measures that legislators and law enforcement officials otherwise only had dreamed of attaining, according to the author? ( ) (a) changes in the public sentiment due to society’s shock (b) people are willing to giving up some of their privacy (c) the tragic events and fear spreading (d) a broad consensus on the fact that traditional policing principles have become unsuited

  Part II. Translation (10 marks) 1. Translate the following paragraph into Chinese (5 marks) A huge fire that engulfed an ancient Tibetan town in Shangri-la, Yunnan province, on Saturday has caused experts to call for heightened fire safety in historic locations across the country. The fire started early on Saturday morning and lasted about 12 hours, destroying 242 houses in the old Tibetan town of Dukezong in Shangri-la, capital of the Diqing Tibet autonomous prefecture. Dukezong town is the largest and best-preserved Tibetan community in all of China's Tibetan areas. It was also a key stop on the Ancient Tea-Horse Caravan Route and a focal point for Han-Tibetan exchanges. 2. Translate the following paragraph into English (5 marks) 美国周四称,其对日本首相安倍晋三(Shinzo Abe)参拜靖国神社(Yasukuni Shrine)感到―失望‖,认为这一行动会―加剧日本与其邻国的紧张关系‖。星期四,安倍参拜了靖国神社,神社中供奉着日本战亡者,包括14名甲级战犯。神社被视作日本军国主义的象征。



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