我国执法权配置的法律实证分析

执法权是国家权力体系中最活跃、最重要的一项权力,其行使的得当与否与每个公民的切身利益息息相关。然而,从目前的情况看,我国执法权的行使还存在着令人忧虑的问题:一方面执法权交叉重叠;另一方面执法权又行使不力。造成这一结果的直接原因是我国的法律制度在执法权配置上存在漏洞,即现行立法过多迁就旧的行政管理体制,过于强调部门的利益,执法权被支解,执法主体过多过滥;同时现行法律制度过于注重对执法行为的约束,忽略执法权的科学配置。这些问题都有待于在我国的立法过程中逐步得到解决,即加强与完善我国各级政府的组织立法,规范各级执法权。     

不完备法律理论下我国食品安全治理改革——从立法完善主义到合理分配剩余执法权

当前我国食品安全治理改革的总体思路是一种建立在建构理性基础上的立法完善主义,即通过对国家立法的不断完备化努力来渐进式地推动我国食品安全治理的改进.不完备法律理论揭示了法律由于人类理性的不及性而通常是不完备的现实,并指出在法律高度不完备状态下,需要在监管者和法院之间合理分配剩余立法权与执法权.根据这一理论,我国在尝试不断完备食品安全治理法律体系的同时,更应注重合理设计监管者与法庭之间关于食品安全剩余执法权的分配体系.由于食品安全市场不能同时兼备不完备法律理论下关于法院与监管者之间如何分配剩余立法权和执法权时所需要参照的标准化因素和预期负外部性效应强度两个条件,因此我国食品安全治理只能综合利用监管者与法院这两种力量,实现剩余执法权的二元互动分配.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

Hold Your Fire: Did the 1996 Federal Gun Control Act Expansion Reduce Domestic Homicides?

In 1996, Congress expanded the federal Gun Control Act (GCA) to prohibit defendants convicted of a qualifying domestic violence misdemeanor from possessing or purchasing a firearm. Using the FBI's Supplementary Homicide Reports along with homicide data collected from selected state law enforcement agencies, I investigate if this expansion was successful in reducing homicides among the target groups. I use variation from a legal loophole and a series of circuit court decisions to generate difference‐in‐differences estimates. I find evidence that the GCA expansion led to 17 percent fewer gun‐related homicides among female intimate partner victims and 31 percent fewer gun homicides among male domestic child victims. The law also has protective benefits for those that were not targeted by the legislation. “Other” family members (parents and siblings) also experience a 24 percent reduction in gun homicides. I find no evidence that reductions in gun homicides were offset by an increase in nongun homicides. While most falsification and robustness tests support the above conclusions, some tests suggest caution when interpreting the results and a need for further research.     

Detaining immigrants and asylum seekers: a normative introduction

Detention of irregular migrants and asylum seekers takes place at the behest and convenience of virtually all liberal states. It is a harmful practice that impacts non-citizens as well as citizens, and has far-reaching ramifications for our understandings of the ethics of immigration and border control. Thus far, however, normative theorists engaged in the vibrant immigration admissions debate have remained mostly silent on the topic of detention. By unmasking and revealing the essential roles played by detention in enforcing immigration controls, this paper is intended to highlight the dangers for normative theory of maligning or underestimating detention. In particular, a study of detention refocuses scholarly attention on the temporal and spatial aspects of immigration enforcement, the undesirability of warehousing or containment proposals for addressing refugee or immigration crises, and the virtually irreconcilable ethical conflicts at the core of the immigration admissions debate. Normative theorists would be remiss in ignoring the ethical and practical consequences for an increasingly large number of people that are exacted by detention practices worldwide.     

Presidential Address: “A Thousand Petty Fortresses”: Administrative Burden in U.S. Immigration Policies and Its Consequences

Contradictory elements in U.S. immigration policy, reflecting a long‐time struggle between inclusionary and exclusionary views, have resulted in federal legislation filled with compromises and tradeoffs that, at state and sub‐state levels, play out in unclear interpretations and uneven, highly discretionary administration and enforcement of immigration law and policy. This research describes a tool of discretionary administration—administrative burden—that is increasingly used in enforcing immigration law and policies at state and sub‐state levels and presents a theoretical frame for more fully investigating and addressing its consequences. The application and implications of administrative burden are explored empirically and qualitatively in a case study analysis of an enforcement‐oriented policy change in Texas that denied access to birth certificates for some citizen‐children born to Mexican immigrants. To better understand the potential consequences of this and related policies, interviews with immigrant parents and longitudinal data from a survey of children of immigrants are analyzed to assess both short‐term and later outcomes of children who are denied economic assistance and other benefits under policies that impose barriers to their integration into society. The study findings point to serious, adverse consequences for citizen children of state and sub‐state immigration policies that create administrative burden and perpetuate racial discrimination, while simultaneously diminishing the transparency, fairness, and effectiveness of public administration.     

Politics,unemployment, and the enforcement of immigration law

Immigration control-related audits and their resulting sanctions are not solely determined by impartial enforcement of laws and regulations. They are also determined by the incentives faced by vote-maximizing politicians, agents acting on their behalf, and workers likely to compete with immigrants in the local labor market. In this paper, we use a unique data set to test the extent to which congressional oversight determines the bureaucratic immigration enforcement process. We examine the decisions made at each stage of enforcement from over 40,000 audits from 1990 to 2000. This includes analysis of (1) whether a firm is found in violation, (2) whether a fine is issued, (3) the size of the fine issued, and (4) how much of a dollar reduction fined employers were able to negotiate. We find that the number of audits conducted increases with local unemployment. We also find that a congressman’s party affiliation and its interaction with committee membership and party majority status, as well as firm size and local union membership, correlate to decisions made at every stage of enforcement.     

黑龙江扎龙自然保护区湿地保护的问题及法律对策

由于人口的迅速增加,经济活动的不断深入,再加上扎龙保护区湿地保护的法律意识不强,执法不力,保护滞后等原因,使目前该地区湿地资源破坏比较严重,生物类型、数量急剧减少,水体污染,过度盲目开发等等问题十分严峻。立足于该地区湿地的实际以及目前存在的主要问题,充分借鉴其他相关区域的经验和模式,打破传统的仅靠立法就能解决湿地问题的观点,科学分析,通过立法、执法、司法相互结合,构造起一个相对科学、系统的湿地保护法治体系,从而能真正地应用到实践中去解决问题,服务地方经济;同时,通过对扎龙地区湿地保护法律问题研究,能够为湿地保护的全国立法提供了良好的经验,推进我国湿地保护的法治进程。     

Beyond Enforcement: Welcomeness,Local Law Enforcement,and Immigrants

Studies of local law enforcement actions toward immigrants show that while some cities engage in enforcement, many others do not. The extent and determinants of enforcement have been assessed, but these studies have not evaluated the full range of practices, including welcoming practices, toward immigrants. This article introduces the concept of “welcomeness,” develops a framework for measuring it, and, using a nationwide survey of local police departments, examines how widely departments are welcoming (or unwelcoming) to immigrants. The data show that many police departments have consciously and deliberately developed practices intended to foster positive relationships between the police and immigrants and to encourage immigrants to call the police for assistance.

Practitioner Points

• Welcomeness encompasses a range of practices toward immigrants that are often intentionally created, thoughtfully implemented, and found in a variety of communities.
• The dimensions of welcomeness provide a framework for police departments to assess their practices and provide a model for police departments that want to engage positively with immigrants.
• Welcoming practices may improve interactions between police officers and immigrants and may improve immigrants’ perceptions of local law enforcement.
• Welcoming police departments often have a deeper commitment to community policing.

     

少数民族中心城市和谐行政执法方式的探索——以贵州省凯里市为例

少数民族地区中心城市是少数民族聚居地,在城市管理执法中由于民族习惯引发的纠纷较多,构成城市管理的特殊问题,这些民俗习惯将渗透于案件的执法管理过程,形成特殊性。基于此,少数民族地区城市的执法管理,应该充分考虑少数民族文化习惯尤其是民族禁忌,采取变通执法,做到国家法律与地方文化习惯的兼容,才能使少数民族地区城市执法达到和谐目的。     

THE COURTS AS A SOURCE OF REGULATORY REVITALIZATION: EXTERNAL AGENDA SETTING AND EQUAL EDUCATION PROGRAMS

The authors examine the relationship between the courts and HEW's Office for Civil Rights (OCR), to illustrate the effects of legal efforts to generate more vigorous agency enforcement. Opponents of racial and sex discrimination in public schools won a series of suits against OCR after it had ceased to effectively implement anti-discrimination legislation. As a result of court decisions, OCR has had its discretion over how it will carry out its legislative responsibilities curtailed.     

Change over Tenure: Voting, Variance, and Decision Making on the U.S. Courts of Appeals

Existing scholarship on the voting behavior of U.S. Courts of Appeals judges finds that their decisions are best understood as a function of law, policy preferences, and factors relating to the institutional context of the circuit court. What previous studies have failed to consider, however, is that the ability to predict circuit judge decisions can vary in substantively important ways and that judges, in different stages of their careers, may behave distinctively. This article develops a theoretical framework which conceptualizes career stage to account for variability in voting by circuit judges and tests hypotheses by modeling the error variance in a vote choice model. The findings indicate that judges are more predictable in their voting during their early and late career stages. Case characteristics and institutional features of the circuit also affect voting consistency.     

Does border enforcement deter unauthorized immigration? The case of Mexican migration to the United States of America

This paper asks whether the migration decisions of unauthorized Mexican immigrants to the USA have been influenced by stronger US border enforcement efforts since 1993 that have sharply increased the physical risk and financial cost of illegal immigration. These measures were supposed to have decreased the probability of successful entry, thereby lowering the expected benefits of migration. We carried out a logistic regression analysis of data from a recent survey of 603 returned migrants and potential first‐time migrants in rural Mexico. Our findings indicate that tougher border controls have had remarkably little influence on the propensity to migrate illegally to the USA. Political restrictions on immigration are far outweighed by economic and family‐related incentives to migrate. An alternative, labor‐market approach to immigration control with higher probability of effectiveness is outlined.     

Explaining variations in enforcement strategy: A comparison of the Swedish health care,eldercare, and compulsory school sector

This article analyzes whether, and if so, why, national inspectorates adopt different enforcement strategies when controlling the provision of welfare services, such as health care, eldercare, and the compulsory school. The findings show that the Swedish Schools Inspectorate uses a predominantly strict strategy, while the Health and Social Care Inspectorate relies on a more situational strategy. To explain this variation in enforcement strategy, the article tests four hypotheses derived from the literature on regulatory enforcement. The findings suggest that the variation between the agencies is not primarily the result of differences in resources or the authority to issue punitive decisions, as suggested by previous research. Instead, we find support for the hypothesis that the definition of quality can explain variation in adopted strategies, and partial support for the hypothesis that differences in regulatory mission can account for a variation in the agencies' formal enforcement strategies.     

The political economy of the environmental criminal justice system: a production function approach

The criminal justice system combines at least three distinct institutions, police, prosecutors, and courts, in order to enforce key regulations. Focusing on criminal environmental law contained in the German Penal Code, this paper empirically studies the determinants of enforcement decisions at the levels of the police, prosecutors, and judges using a production function approach. We focus particularly on the role of economic and political factors and their comparison across institutions. The results of the panel data analysis show evidence for the presence of economic factors determining behavior at all levels. Political factors impact especially on police and court behavior.     

Immigration Enforcement and Children's Living Arrangements

Tougher immigration enforcement was responsible for 1.8 million deportations between 2009 and 2013 alone—many of them were fathers of American children. We exploit the geographic and temporal variation in the escalation of interior immigration enforcement to assess its impact on the structure of families to which many of the deported fathers of U.S.‐born children belonged. We find that the average increase in immigration enforcement during the 2005 to 2015 period has raised by 19 percent the likelihood that Hispanic U.S.‐born children might live without their parents in households headed by naturalized relatives or friends unthreatened by deportation. Likewise, the same increase in immigration enforcement has raised by 20 percent these children's propensity to live with likely undocumented mothers who report their spouses as being absent—a reasonable finding given that most children with a likely undocumented father have undocumented mothers. Given the negative consequences of being raised by a single parent or without parents, plus the parallel increase in interior immigration enforcement, gaining a better understanding of the collateral damage of heightened enforcement on the families to which these children belong is well warranted.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

报应优先兼顾功利——刑法上报应和功利的取舍初探

报应和功利是刑法的两大基本范畴 ,理论上对报应和功利在刑法上的意义的认识比较混乱。本文认为报应是刑法根据意义上的范畴 ,功利是刑法目的意义上的范畴 ,纯粹的报应论和功利论都是不可取的。但是由于各自的刑法意义不同 ,相应地在刑法理论和立法中对两者进行取舍、权衡时也不能等量齐观。因此 ,应在整个刑法范围内坚持报应优先、兼顾功利 ,并指出一些和此结论不一致的比较典型的立法规定。     

Tightened Immigration Policies and the Self‐Employment Dynamics of Mexican Immigrants

As the U.S. government has intensified its crackdown on illegal immigration in recent years, an important question to ask is how undocumented immigrants react to the stricter enforcement of immigration laws. This paper seeks to answer whether they increasingly choose self‐employment in an effort to avoid apprehension and subsequent deportation. To guard against endogeneity bias that might stem from increased enforcement in reaction to illegal immigration, the empirical analysis makes use of the September 11 terror attacks (9/11), which inadvertently triggered stricter immigration enforcement nationwide, as a natural experiment. Using a difference‐in‐differences approach and data from the Current Population Survey between 1996 and 2006, this paper examines the changes in the self‐employment choices of male and non‐citizen Mexican immigrants (a proxy for undocumented immigrants) compared to less‐educated Whites (the control group). The findings indicate that male and non‐citizen Mexican immigrants are substantially more likely (40 percent) to enter into self‐employment than less‐educated Whites after 9/11. The analysis further suggests that this finding is not driven by the 2001 recession that coincided with the terror attacks. The increased entries are mainly observed in the group that is most likely to be in the United States illegally and in those who face strong economic incentives. In addition, increased entries are not driven by increased unemployment among Mexican immigrants after the 9/11 event, but, rather, they reflect a change in the behavior of the unemployed Mexican immigrants, perhaps due to changes in perceived risks of detection and deportation.