Restrictive Interpretation Research Articles

Prisión Preventiva en Chile: Presión de la Gestión del Tiempo y Estandarización

The use of pre-trial detention in Chile is widely debated. Chilean legal scholars, for the most part, have advocated a restrictive interpretation. Despite this, empirical research studies on the use of pre-trial detention in Chile has revealed an increase in its use during the last decade and the development of standardized working strategies in judicial decision-making in this institution. To date, we lack in-depth analysis of the practice of this standardization and its specific relationship to pre-trial detention decisions. Based on non-participant observation of hearings and interviews with judges, prosecutors and defense attorneys in courts in the Araucanía and Bio-Bio regions, this article presents an empirical analysis of the application of pre-trial detention in Chile. In particular, how does the standardization of judicial practices influence the way decisions on pre-trial detention are made in Chile? The research study focused on the bureaucratic management of time from a socio-legal perspective. It finds that, in the face of time pressures, courts have adopted specific strategies to organize hearings, generating different types of hearings, each with its own speed and logic of standardization. The article emphasizes the need for a detailed and empirical exploration of the processes of bureaucratization within the judicial system and the tangible impacts these processes have on the fairness of access to justice.

Distinctions: Uses of the Bible in Immigration Debates

This article considers and responds to some of the ways the Bible is used in US immigration debates, focusing on restrictive interpretations by conservative scholars. It highlights how biblical texts are often applied to support modern distinctions, such as legal versus illegal immigrants, by selectively interpreting passages like those referring to the “least of these” or the treatment of sojourners versus foreigners. The discussion draws on some complexities of theological history, including how Western Christianity’s colonial mindset distorted biblical teachings, leading to exclusionary practices. The article contrasts these views with more inclusive biblical interpretations that emphasize hospitality and justice.

Evoked Component Analysis (ECA): Decomposing the Functional Ultrasound Signal With GLM-Regularization.

Analysis of functional neuroimaging data aims to unveil spatial and temporal patterns of interest. Existing analysis methods fall into two categories: fully data-driven approaches and those reliant on prior information, e.g. the stimulus time course. While using the stimulus signal directly can help identify the activated brain areas, it is known that the relationship between stimuli and the brain's response exhibits nonlinear and time-varying characteristics. As such, relying completely on the stimulus signal to describe the brain's temporal response leads to a restricted interpretation of the brain function. In this paper, we present a new technique called Evoked Component Analysis (ECA), which leverages prior information up to a defined extent. This is achieved by including the general linear model (GLM) design matrix as a regulatory term and estimating the factor matrices in both space and time through an alternating minimization approach. We apply ECA to 2D and swept-3D functional ultrasound (fUS) experiments conducted with mice. When decomposing 2D fUS data, we employ GLM regularization at various intensities to emphasize the role of prior information. Furthermore, we show that incorporating multiple hemodynamic response functions within the design matrix can provide valuable insights into region-specific characteristics of evoked activity. Finally, we use ECA to analyze swept-3D fUS data recorded from five mice engaged in two distinct visual tasks. Swept-3D fUS images the 3D brain sequentially using a moving probe, resulting in different slice acquisition time instants. We show that ECA can estimate factor matrices with a fine resolution at each slice acquisition time instant and yield higher t-statistics compared to GLM and correlation analysis for all subjects.

Complexity and Difficulty in Second Language Acquisition: A Theoretical and Methodological Overview

AbstractThis article presents a theoretical review of and methodological guidelines for the study of two key notions in second language acquisition research, complexity and difficulty. The term complexity has gained considerable currency over the past decades and has taken on a wide range of meanings. We argue for a more restricted interpretation, focusing exclusively on formal, structural properties of linguistic items. The less employed term difficulty in our account refers to the cognitive costs associated with learning and using such items. On the basis of our theoretical definitions, we critically review measures operationalizing these constructs and discuss their strengths, limitations, and potential applicability to second language research, in order to establish a small set of measures to be used routinely in the interest of replicability and knowledge accumulation in the field. In addition, we discuss the relationship between complexity and difficulty and the associated notions of proficiency and development.

특허침해소송이 제기된 이후 소극적 권리범위확인심판 청구를 제한할 필요성에 관한 소고

Given the intent and practical utility of the patent right scope confirmation system, the necessity to maintain this system should be acknowledged. However, it is questionable whether the interests of confirming the scope in cases where infringement lawsuits have already been filed, leaving only the main judgment, or even after a final judgment has been rendered, should be acknowledged. In such cases, there may be opportunities for parties to exploit the patent scope confirmation trial to delay disputes. In practice and the Supreme Court, except for exceptional cases such as seeking confirmation of the scope concerning patents that have expired or are not being implemented by the parties, the interests of confirming the scope of patent in trials and lawsuit are recognized. However, considering the legal nature, effectiveness, and relationship with related infringement lawsuits under patent law, it should not be overlooked that in some cases, it may be more efficient to restrict this process. Excessive requests for patent scope confirmation trials can burden parties with excessive time or costs and result in unnecessary waste in the national litigation system. Rather than generally recognizing the interests of confirmation based on the necessity or independence of the system, it is necessary to assess the interests of confirmation from the perspective of whether it is an effective and appropriate means for resolving specific disputes. While acknowledging the intent and function of the patent scope confirmation system, it is necessary to limit requests for confirmation of the scope by assessing ‘the presence or absence of interests of confirmation’. For instance, when a related infringement lawsuit has already been filed and has progressed to the point of hearings, there is no need to recognize the interests of negative patent scope confirmation, which would impose dual litigation burdens and delay on the parties and waste the court's time and resources on ineffective disputes. Furthermore, when patent scope confirmation and related infringement lawsuits run concurrently, each procedure is independent and not binding, which can lead to conflicting conclusions and undermine confidence in the patent system and the judicial system. Moreover, with the 2016 amendment to the Civil Procedure Act, where appeals of nullification lawsuits and infringement lawsuits are under the jurisdiction of the Patent Court, and both procedures are simultaneously litigated, the situation has become less prone to inconsistency or undermining. Therefore, recognizing ‘the interests of patent scope confirmation’, even in cases like the one mentioned, should be limited, and a restrictive interpretation should be applied.

Back to the Future? The Evolution of European Social Citizenship through the Lens of Citations

In the aftermath of the Dano judgment, the scholarship unanimously identified a jurisprudential shift towards a more restrictive interpretation of European citizenship, leading to the refusal of social assistance. Yet, the extent to which the observed shift in the approach of the Court of Justice of the European Union (the Court) permanently redirected the trajectory of European social citizenship remains understudied. The emphasis placed on contextual causes hints at a possible return to the earlier approach if the political climate becomes more conducive to the development of European social citizenship. This article empirically revisits the Court’s citizenship jurisprudence from a novel perspective, that of citations. The research question seeks to determine if there is a fundamental shift in the reference frame of citizenship judgments and the extent to which the Court’s restrictive approach, observed in the 2010s, persists in recent judgments. All citizenship judgments delivered until October 2023 are examined by combining network and legal analysis. The findings reveal a fundamental and potentially strategic shift in the reference frame of citizenship judgments delivered from 2016 onwards compared to judgments delivered before. Crucially, despite the revival of social Europe in recent years, the Court has not returned to its pre-Dano approach.

The Right to Conscientious Objection as a Constitutional Category: Selected Issues. A Comparative Study of Fundamental Laws and Constitutional Courts’ Jurisprudence

The article presents the results of a comparative study focusing on the right to conscientious objection in constitutions of modern states. This right is primarily associated with military service. In approximately a dozen constitutions, it stands as an independent, general right to conscientious objection. The constitutional scope of the given right is typically broad, with lawmakers seldom specifying the sources or conditions for its exercise. The contentious nature of the analysed right causes its explicit challenge in several constitutions. Case law, especially that of constitutional courts, reveals that the normative presence and the specifics of the right to conscientious objection within a particular legal system may not necessarily originate directly from constitutional provisions. Court decisions rendered in various countries sometimes attribute a constitutional character to this right, even when the fundamental law does not explicitly articulate it. Conversely, there are occasional restrictive interpretations of unequivocal constitutional provisions regarding conscientious objection.

The Narrow Definition of Genocide & Its Role in Investigating and Prosecuting Charges of Genocide in Romania

ABSTRACT The definition of genocide employed by the United Nations is criticized for failing to protect certain groups from abuses conducted by state entities. Drawing from the case study of Romania, this article explores how the narrow definition of genocide impacts the assessment and prosecution of charges of genocide during the process of transition from communism to democracy. Furthermore, drawing on Axel Honneth’s theory of recognition, the research explores how this restrictive interpretation of genocide undermines victims’ claims to justice and recognition, revealing that the strict interpretation of genocide hinders transitional justice efforts and erodes trust in state institutions.

Arguments from Fairness and Extensive Interpretation in Greek Judicial Rhetoric

Arguments from fairness as described in Aristotle’s Rhetoric are usually taken to aim at mitigating the strictness of the law or, in terms of procedure, to favour the defendant. This paper considers a more inclusive interpretation, that is, that arguments from fairness can work both ways. In the example given in the Rhetoric, arguments from fairness are directed at a restrictive interpretation of the text. That may not be necessary however. Likewise, fairness may speak for the claimant. Two examples may support this conclusion: a judicial speech by Hyperides, and the doctrine of issues appearing in Hellenistic school rhetoric.

Whither security? The concept of ‘essential security interests’ in investment treaties’ security exceptions

Abstract Unlike the WTO agreements, most investment treaties’ security exceptions do not further define the concept of ‘essential security interests’, creating significant uncertainty. Securitization theory illuminates conceptual problems associated with an expansive approach to security, security’s role in justifying extraordinary deontic powers, and securitization’s contingency on intersubjective agreement. As securitizing actors, states have put forward four paradigms of security, each significantly expanding the concept beyond its traditional contours. Investors have resisted with two counter-securitizing moves, each involving several tactics. Reacting to these moves and countermoves, tribunals have functioned as either empowering audiences or as nullifying audiences. The ambiguity of essentiality has also generated incongruent interpretations. States’, investors’, and tribunals’ approaches operate on three different planes, each with potential to significantly constrain security’s scope or even negate a successful securitization. Expansive and restrictive interpretations of security present competing implications that make defining it an invidious task, but some interpretations of essentiality are more tenable than others. Overall, tribunals’ narrow interpretations of the concept have operated to considerably limit states’ securitization attempts. While investors should keep a close eye on pending cases involving potentially self-judging security exceptions, they need not be overly concerned that security exceptions pose a significant threat to their interests.

Interaction of the Qualifications and Public Policy in Private International Law

The conflict of qualifications and the public policy clause in private international law can be used to achieve the political and legal objectives of the court's rule of law. The analysis of judicial practice and special literature on it indicates an increasing interest in the issue of interaction of these two tools for the stated purposes. The article aims to illustrate this interaction using specific examples from judicial practice and identify its patterns, in particular, to establish subordination between the conflict of qualifications and the public policy clause. To achieve the result, general scientific and special research methods were used, including the method of comparative law. As a result of the study the author has made a conclusion. The method of functional qualification dictated by legal dogmatics does not give the conflict of laws norm independence from the political and legal will of the legislator. The conflict of laws norm remains an instrument in the hands of the state to achieve political and legal goals, and in this sense its dogmatic interpretation allows for political and legal correction. This correction is expressed in a restrictive interpretation of the concepts of conflict of laws, when it becomes necessary. The protection of the court's rule of law values, traditionally associated with the reservation on public order, is transferred to an earlier stage of qualification of the concepts of the conflict of laws rule. Due to the restrictive qualification, the correction of the result dictated by dogma is carried out both in the choice of applicable law and in determining the scope of the conflict of laws reference. As a result, the queue does not reach the stage of applying the public policy clause, since its goals have already been achieved due to political and legal qualifications.

Restrictive Interpretation of Exceptions: Identification and Hunt of Ideologies

The objective of this article is to assert that jurists advocating for the restrictive interpretation of exceptions in rules, or exceptions to rules, often do so based on an underlying interpretive ideology. To achieve this goal, we will conduct a metatheoretical analysis of how legal theorists have conceptualized the notions of restrictive interpretation and exception. This analysis aims to demonstrate that, when viewed from this perspective, there is no conceptual relationship between these two notions.

Sensitive Research: a Trial of Retrospective Analysis and Conceptualizations

The article is devoted to understanding the problem of sensitivity in survey research. A retrospective analysis of the formation and development of the field of scientific knowledge, which in western sociology in the 1990’s was refereed to as “sensitive research”, is presented. A brief historical outline of the study of sensitive issues is given with an emphasis on the most prominent schools in world sociology and the most renowned authors who have made a significant contribution to the study of this topic (representatives of the Chicago School, A. Kinsey, S. Warner, G.S. Becker, R. Lee, C. Renzetti, R. Tourangeau, T. Yang and others). The early and modern conceptualizations of sensitivity are critically analyzed, the weaknesses and shortcomings of both expansive (J. Sieber and B. Stanley) and restrictive (N. Farberow) interpretations of this concept are shown. A multifactorial approach developed by R. Lee and K. Renzetti is considered as an alternative, one that takes into account various types of threats that determine the sensitive nature of the questions asked and the answers received. The social nature of sensitivity is discussed. It is shown how the socio-cultural context and the specifics of respondents’ perception of questions influence the results of survey studies. The main consequences of using sensitive issues in sociological research are also analyzed. At the same time, there are three most dangerous effects that have a detrimental effect on the quality of empirical data: weakening cooperation on behalf of respondents, the increase in the number of missing questions (non-answers) and the emergence of socially desirable (insincere) answers. The factors causing these effects are identified, and methods are proposed to help neutralize them. Conclusions are drawn about the socio-cultural conditionality of question sensitivity, its contextual and situational nature.

Public Biological Databases and the Sui Generis Database Right

The sui generis database right is an intellectual property right created in the European Union to stimulate investment in the curation of databases. Since its inception, communities engaged in research and development efforts have questioned its potential to incentivise database production, and posit that it stifles productive downstream uses of existing datasets. European courts have restricted the right’s ambit through a restrictive interpretation of the circumstances in which it applies, which we argue, enables downstream use of biological databases. Nonetheless, residual ambiguities about potential infringement of the right exist. The prospect of unintentional infringement can frustrate downstream innovation. These ambiguities are compounded because the criteria that determine whether or not the right applies are reliant on information that is not available to the prospective downstream users of public datasets. Repealing the sui generis database right is recommended. Legislatures are advised to refrain from the implementation of broad novel intellectual property rights in the future, without first adopting safeguards that mitigate the potential for such rights to frustrate the reuse of available intangibles to the detriment of pro-social innovation.

‘A Daughter is Like a Pot of Fish Paste While a Son is Like Pure Gold’: Gendered Conceptions of ‘Human Dignity’ in Cambodia

ABSTRACT The concept of human dignity is not universally understood and has many different meanings across diverse contexts. This article interrogates conceptions of human dignity in Cambodia by drawing on original interviews and focus groups and analysing references to ‘dignity’ in Cambodian law and cultural practices. Using the concept of ‘dignitarian feminism,’ it explores how patriarchal interpretations of social, cultural, and religious norms in Cambodia interact with and shape understandings of women’s dignity. It demonstrates that human dignity emerges as diverse, highly gendered, and heavily influenced by Cambodia’s patriarchal interpretation of social, cultural, and religious norms. While ideas of ‘intrinsic’ human dignity and gender equality are framed as valuable aspirations, in practice, understandings of women’s human dignity are shaped by patriarchal norms centred on ‘virtuous’ behaviour, women’s class, socio-economic status, and experience of violence. Such framings restrict women’s ability to exercise agency, their opportunities, and their ability to access justice in the face of violence. Ongoing feminist engagement with the risks of restrictive interpretations of fundamental human rights norms is necessary for women and gender minorities to have their intrinsic human dignity respected regardless of their attributes, life experiences, and backgrounds.

The Optional Protocol to the icescr, Homelessness and Moral Hazard: The Alternative Adequate Housing Requirement in the cescr’s Jurisprudence – an Incentive Not to Pay for Housing?

Abstract Over 75 per cent of the jurisprudence under the op-icescr deals with the right to housing as laid down in Article 11 of the icescr. States parties should provide adequate alternative housing after evictions. However, this far-reaching requirement may lead to moral hazard. The study presents a new understanding of the adverse effects of extensive protection, such as universal eviction protection, which may cause strategic defaults. The study suggests that a restrictive and reasonable interpretation of Article 11 icescr may reduce the incentive for defaults but may not prevent land-grabbing or squatting.

The asylum case: an analysis of the International Court of Justice's leading judgment on political asylum and regional custom

This paper offers an overview of the political background in Peru when a dispute on the political asylum of Victor Raúl Haya de la Torre between Colombia and Peru arose. The claim and counter-claim submitted to the International Court of Justice (ICJ) and the Court´s decision are discussed. It critically reviews the judgment's main issues to the international legal debate: the right of qualification of a political offense, the discussion over regional customary international law, the duty or not to give a safe-conduct, and what should be considered urgency for the purposes of diplomatic asylum. It claims that the unilateral qualification of the offense is essential to the character of diplomatic asylum. It highlights that this was the first decision of an international tribunal that confirms the existence of a regional custom and discusses what is necessary for a local practice to be considered regional custom. It refutes ICJ´s ruling and argues that nowadays, in the Latin-American context, the territorial State is bound to issue a safe-conduct, regardless if it requested the refugee to leave the country. It disagrees with ICJ´s restrictive interpretation of the term “urgent cases” and understands that urgency shall be construed to allow diplomatic asylum in times of political instability and prevent it in times of democratic normality.

Unanimity or standing aside? Reinterpreting consensus in United Nations Framework Convention on Climate Change negotiations

What is the meaning of ‘consensus’ within and beyond the UNFCCC? What alternative interpretations of consensus are available based on consensus facilitation practice and related literature? This article assesses the mismatch between how the UNFCCC interprets consensus and its broader interpretation in the facilitation practice literature, and proposes a way forward using the concept of ‘standing aside’ more prominently. The restrictive consensus interpretation has far-reaching implications for the ability of the world’s central climate regime to be fit for purpose, i.e., facilitating multilateral climate action. The analysis of consensus in the UNFCCC points to the central problems of unpredictability and ambiguity in the determination that consensus exists. Many negotiators and chairs acknowledge the problem of predominantly interpreting consensus as unanimity and have subsequently sought ways to address the damage it does through ad hoc rulings that consensus exists sometimes by ignoring the expressions of objection; however, this comes at the expense of a good predictable process.

La práctica de la iniciativa legislativa en el constitucionalismo español reciente

El modelo de democracia que se deriva de la Constitución española aprobada en 1978 se ha intentado definir a través del uso de instrumentos de participación electoral/representativos e instrumentos de participación directa. No obstante, el vértigo de un constituyente timorato, una interpretación restrictiva de la jurisprudencia constitucional y una práctica perezosa han convertido en marginales los instrumentos de participación política semidirecta. Con este complicado marco de partida, el presente trabajo intenta describir los problemas con los que se ha encontrado el reconocimiento constitucional de la iniciativa legislativa popular, valorar cómo se ha gestionado en la vida política ese instrumento de participación ciudadana y, por último, hacer propuestas que pudiesen revitalizar el ejercicio popular de ese mecanismo para que el Cuerpo Electoral pueda colaborar efectivamente en el proceso legislativo junto con las Cortes y el Gobierno.

Restrictive Interpretation on "Serious Circumstances" in the "Crime of Infringing Trade Secrets"

The Criminal Law Amendment (11) changes the criminalization standard for the crime of infringing trade secrets from "causing significant losses" to "serious circumstances", but the essence of the boundary between crime and non-crime is still whether "significant losses have been caused". By comparing the four mainstream theories and representative extraterritorial legislation, this paper analyzes from four dimensions: implementation feasibility, economic benefits, scope of application, and application possibilities. The profit method is the profit method to calculate the optimal calculation method for measuring the amount of loss caused by trade secret infringement that best suits China's national conditions.