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標籤: 论文

分享一点粗浅的法学论文写作经验

  今天和同学在QQ上聊起写论文,胡乱说了几句方法的东西,事后一读觉得还挺有意思,贴在这里分享一下,自己也记录一下。

  法学研究毕竟与社会学不同。首先还是对法律逻辑体系的整理、批评和回顾。我觉得首要的研究是现有立法。先把现有立法、现有司法判决整理出来,我觉得这是第一步。第一步看了一些立法和判决后,会发现立法和司法中的问题,比如模糊之处,或者矛盾之处。再针对问题去找相关的资料,这样就很快缩小范围了。

  至于外国的相关制度,则不能着急。要等真的整理出了问题之后,再去找外国的法律。否则,以方向(或“主题”)为关键词去找外国的东西,就很容易失败。很多研究者都想拿自己的题目直接翻译后去搜索外国资料,然后会发现外国没有相对应的立法。我想主要的问题是没有注意到比较法的局限。比较法作为一种方法,还是以功能主义为主。功能等同的制度,在描述上,在学科归属上,各国会非常不同。所以不见得有用。

  只有发现问题后,才有可能带着问题去找资料,包括阅读外国的立法(或教科书,教科书往往很有用),通篇阅读(或者至少看目录),而不是单独找对应条款(因为常常找不到对应的),然后才能发现其中可能可以解决相关问题的条款。

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网络上知识产权评估(尤其是版权)方面的资料

Dealing with Intangibles: Valuing Brand Names, Flexibility and PatentsAswath Damodaran
http://pages.stern.nyu.edu/~adamodar/pdfiles/papers/intangibles.pdf

知识产权审计:操作指南http://www.wipo.int/export/sites/www/sme/zh/docs/ip_audit.pdf

INTELLECTUAL PROPERTY AS AN ECONOMIC ASSET: KEY ISSUES IN VALUATION AND EXPLOITATION
http://www.oecd.org/dataoecd/18/2/35519266.pdf

The Economic Valuation of Trade Secret Assetshttp://www.thetso.com/?Info/evaluation.html

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Private property: conceptual and normative analyse

Private property: conceptual and normative analyses (property rights, intellectual property)

Wenar, Leif Edward.

online access from Digital Dissertation Consortium
Thesis (Ph.D.)–Harvard University, 1997.

Summary
 This thesis offers conceptual and normative analyses of private property. Chapter one presents a conceptual analysis. Chapters two and three use this analysis to address prominent theories of what kind of property rights we ought to have. Chapter four criticizes the dominant legal conception of property, and chapter five reconceptualizes intellectual property while evaluating the application of various philosophical theories to it. The main conclusions of these chapters are that there is a coherent and interesting core conception of property, and that the justifiability of any set of property rights will turn on how those rights bear on a diverse set of human interests.
 Chapter one demonstrates that the core conception of property can be identified with the objects of a two-layered structure of Hohfeldian rights. This conception is shown to lie at the overlap of other conceptions of property (commodities, assets, etc.), and to be helpful in describing the complexities of modern property systems.
 Chapter two criticizes familiar Lockean arguments (labor-mixing, desert, etc.) that purport to establish the contemporary relevance of original acquisition of private property.
 Chapter three probes the libertarian disregard for the patterns of ownership that would be generated by a strong right to transfer property. It argues that libertarians can only justify their favored right by referring to the patterns of interests that would result from the right’s exercise. Topics include taxation and self-ownership.
 Chapter four traces the history of interpretation of the takings clause of the US Constitution from the point when the legal academy embraced a mistaken conception of what property is. It explains how the improbable idea that property is rights (not things) drew commentators such as Michelman, Sax, and Epstein toward unnecessarily counterintuitive readings of the clause.
 Chapter five finds that copyright is importantly different from property rights in tangible things. Lockean and Hegelian approaches to copyright are therefore found to be substantially misconceived. Libertarian and law-and-economics approaches to copyright are conceptually better, but do not adequately represent the value pluralism that is integral to all plausible property law.

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public domain, personal interest and the copyright

No way in: The public domain, personal interest and the evolution of copyright
Breyer, John Stewart.

Thesis (Ph.D.)–The University of Southern Mississippi, 2004.
online access from Digital Dissertation Consortium

Summary
The root of American copyright law can be found in Article 1, section 8, paragraph 8, of the Constitution. The concept is simple. The law exists "To promote the Progress of Science and useful Arts." The law that has evolved from this simple concept is complex and contentious. After more than two and one quarter centuries of evolution, it continues to expand. This research reviews the history of copyright and reflects upon the conflict among the elements that have shaped American copyright law. The dissertation draws upon legal cases that have ultimately determined how the law has been interpreted and distinguishes between two primary factions, the creators and the public. 

The author contends that there are four primary arguments that are mounted to persuade courts, lawmakers, and the public that the original tenets of copyright are no longer functional. The arguments of tangibility, originality, technology, and property are reviewed in detail. The research reveals how employment of these arguments has effectively distracted legislators and the public from the original purpose of American copyright. The result of these distractions is revealed in this research.

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Authorship and the discourse of literary property

Negotiating copyright: Authorship and the discourse of literary property rights in nineteenth-century America (James Fenimore Cooper, Walt Whitman, Harriet Beecher Stowe, Mark Twain, Emily Dickinson).

Buinicki, Martin Thomson, Jr.
Thesis (Ph.D.)–The University of Iowa, 2003.
online access from Digital Dissertation Consortium

Summary
“Negotiating Copyright: Authorship and the Discourse of Literary Property Rights in Nineteenth-Century America” examines how debates over copyright law in the United States during the nineteenth century, particularly over the lack of an international copyright law, intersected with the business practices and political and artistic beliefs of American authors. These debates shaped a discourse of literary property rights that forced authors to negotiate their copyrights not only with their publishers, but with their readers as well. Employing the overlapping issues and terms discussed in newspaper editorials, legislative sessions, and the public and private writing of James Fenimore Cooper, Walt Whitman, Harriet Beecher Stowe, Samuel Clemens, and Emily Dickinson, this dissertation demonstrates how authors found themselves in an uneasy opposition to their reading public. Authors were forced to stake their claim to their rights as property holders while at the same time fending off criticism that literary works should be easily and cheaply available within the rapidly expanding American literary marketplace. As a result, the act of taking out a copyright was more than a mere legal mechanism marking a transition from amateur to professional or artist to businessperson. Taking out a copyright had a profound impact on how audiences viewed authors, how authors perceived their profession, and how they represented individual rights and property ownership within their texts.

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