Authority,Nationality, and Minorities

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups—such as territorial self‐government or power‐sharing—are justified insofar as they might offset this disadvantage.     

Control of communicable diseases; apprehension and detention of persons with specific diseases; transfer of regulations. Food and Drug Administration and Centers for Disease Control and Prevention, HHS. Final rule

The Secretary of Health and Human Service (the Secretary) is transferring a portion of the Food and Drug Administration (FDA) "Control of Communicable Diseases" regulations to the Centers for Disease Control and Prevention (CDC). In general, these regulations provide the Secretary with the authority to apprehend, detain, or conditionally release individuals to prevent the spread of specified communicable diseases. The regulations implement the provisions of the Public Health Service Act (PHS Act) to prevent the introduction, transmission, or spread of communicable diseases from one State or possession into any other State or possession. CDC will have authority for interstate quarantine over persons, while FDA will retain regulatory authority over animals and other products that may transmit or spread communicable diseases. The Secretary is taking this action to consolidate regulations designed to control the spread of communicable diseases, thereby increasing the agencies' efficiency and effectiveness.     

European Economic Governance and Parliamentary Representation. What Place for the European Parliament?

This article aims to analyse the European Parliament's (EP) position in the reform of the European economic governance, in particular after the adoption of the ‘six‐pack,’ the ‘two‐pack’ and the ‘fiscal compact.’ References are made to the involvement of the EP in the decision‐making process that led to the adoption of the new measures as well as to the substantive role assigned to this institution in the new regulatory framework. The article argues that the new provisions, which undermine the budgetary authority of national parliaments while, at the same time, designing a limited role for the EP—though strengthened compared to the previous version of the Stability and Growth Pact—can jeopardise the effectiveness of the landmark principle of ‘no taxation without parliamentary representation’ in the EU.     

Toward a Theory of Compliance in State‐Regulated Livelihoods: A Comparative Study of Compliance Motivations in Developed and Developing World Fisheries

This article addresses the question of how states can best promote citizens' compliance with laws that regulate livelihoods. Based on ethnographic data from fishing communities in three countries—Norway, Canada, and South Africa—the article compares compliance motivations that exist under different socioeconomic and political conditions. The comparisons give rise to a typology of three compliance motivations: deterrence, moral support for the law's content, and the legislator's authority. This article then identifies three governable preconditions—enforcement, empowerment of citizens, and civic identity—that respectively explain these motivations. The article argues that the compliance discourse in a given type of state must be framed such that it includes at least the governable preconditions for compliance that have not been met in that state. Consequently, a functional compliance strategy would vary between different state types. The article thus questions the transferability of the developed world's compliance discourses to the developing world.     

证明责任与不适用规范说——罗森贝克的学说及其意义

本文着重探讨了民事诉讼中当事人负担客观证明责任的缘由。文章认为,与"拟制说"相比,罗森贝克的"不适用规范说"对缘由的解释简明扼要,通俗易懂。另一方面,实体法作为裁判规范,其适用是与要件事实的可证明性相关联的,要件事实真伪不明时,未必一定需要拟制这一中间环节。因此,"不适用规范说"不失为一种有力的学说,对我国民诉理论与审判实务具有借鉴意义。     

Taxation Threat, Motivational Postures, and Responsive Regulation

The central proposition of motivational posturing theory is that regulatees place social distance between themselves and authority, communicating the nature of that distance through a narrative that protects the self from negative appraisal by the authority. One of the key components of posturing is the coping sensibility that individuals adopt to manage the threat of authority. At a baseline level, authorities make demands on citizens and as such threaten individual freedom. At the highest level, authorities threaten through punishment for non-compliance. Data collected from 3,253 randomly selected Australian taxpayers and a special group of 2,292 taxpayers in conflict with the tax authority are used to show that in both groups, three coping sensibilities contribute to posturing ("thinking morally,""feeling oppressed," and "taking control"), and that all three sensibilities are significantly heightened in the group experiencing conflict with the authority. The article argues that the most effective regulatory outcome is achieved when the regulatory process can dampen the "taking control" and "feeling oppressed" sensibilities, and strengthen the "thinking morally" sensibility. Responsive regulation is an approach that encourages tax authorities to read motivational postures, understand the sensibilities that shape them, and tailor a regulatory intervention accordingly.     

论“光大证券事件”中的期货内幕交易

光大证券在期货市场的交易行为是否构成内幕交易值得深究。从解释论的角度看,证监会的处罚没有说明为何光大证券属于内幕知情人,通过对《期货交易管理条例》第82条第12项的解释,应当认为光大证券作为期货投资者,不属于期货内幕知情人,因而不构成期货内幕交易;从英、美两国的规定看,无论是通过对期货内幕人范围的限定还是规定相应的抗辩事由,比较法上的经验都说明了并非利用重大非公开的信息都可构成内幕交易;分析期货市场的特殊性,可以发现期货市场的主要功能是套期保值,而套期保值者相比于投机者具有不可避免的市场信息优势,为了实现套期保值与市场的流动性,利用信息优势进行期货交易属于期货市场的惯常做法;"光大证券乌龙指事件"给资本市场造成了很大的冲击,但在我国期货监管机构以及交易所对该种异常情形缺乏规定的情况下,其利用信息优势进行套期保值,仍然属于该惯常做法的范围内;若监管机构拟对这类行为进行规制,应该事先制定例外规则,对特定类型的做空交易进行限制。     

Regulating (for the benefit of) future persons: a different perspective on the FDA's jurisdiction to regulate human reproductive cloning

The Food and Drug Administration (FDA) has taken the position that human reproductive cloning falls within its regulatory jurisdiction. This position has been subject to criticism on both procedural and substantive grounds. Some have contended that the FDA has failed to follow administrative law principles in asserting its jurisdiction, while others claim the FDA is ill suited to the task of addressing the ethical and social implications of human cloning. This Article argues, that, notwithstanding these criticisms, the FDA could plausibly assert jurisdiction over human cloning as a form of human gene therapy, an area in which the FDA is already regarded as having primary regulatory authority. Such an assertion would require that the FDA's jurisdiction extend to products affecting future persons, i.e., those not yet born. This Article demonstrates, for the first time, that such jurisdiction was implicit in the enactment of the 1962 Kefauver-Harris Amendments to the Federal Food, Drug, and Cosmetic Act and that the FDA has historically relied on such authority in promulgating regulations for drugs and devices.     

Reforming Natural Gas Fracking Regulations in 2017–2018: How Should States Enforce Regulations?

While much scholarly work has been published on hydraulic fracturing regulatory frameworks, there is little discussion on the enforcement mechanisms of these regulations and statutes. This article explores state hydraulic fracturing regulations and the expansion of a criminal framework to enforce compliance. More specifically, this article takes a comparative look at fracking enforcement regimes in California and several states with the most hydraulic fracturing activities. First, the article discusses fracking's economic benefits and environmental issues. The article then analyzes federal regulations, (which essentially leaves the bulk of regulation and enforcement to state and local governments) and state enforcement systems in California and the four states with the most fracking wells (Texas, Wyoming, Pennsylvania, and Colorado). California, a state that is pushing for more renewable resources, has robust regulations under Senate Bill 4. In the end, states that rely heavily on fracking should reform the enforcement mechanisms to disincentive noncompliance. Regulatory regimes in the other states appear to have deficiencies that could be remedied by adopting stricter enforcement mechanisms—such as criminal sanctions—that would disincentivize noncompliance, which could lead to large-scale environmental disasters. This article postulates that a model system incorporating a variety of methods including increased criminal enforcement could provide for proper remedies, justice, and deterrence. An ideal enforcement framework for effective deterrence should focus on transparency, flexibility, trusted delegation, and proportionality.     

The Rule of Law and Its Predicament

Abstract.  The purpose of this paper is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's "realist theory of interpretation." The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.     

The meaning of “the public interest” in communications policy—part II: Its implementation in early broadcast law and regulation

For more than a half‐century, as the cornerstone of federal broadcasting and telecommunications policy, the public interest standard has always been subject to some debate. Questions have regularly been raised about its meaning and the extent of the authority it implies for regulation, particularly in the deregulatory environment of the 1980s and 1990s. Part I of this study demonstrated how a deep reading of the pre‐broadcasting state and federal regulatory history reveals that interpretations of the public interest standard that have emphasized broad, diverse, public service programming have entailed a misunderstanding of its real, underlying meaning. This part of the study shows how another definition—i.e., that the public would be best served by protecting economic viability and technological advancement for private industry broadcasters—developed as the predominant doctrine before adoption of the Radio Act of 1927 and Communications Act of 1934, and how that theme came to be the applied interpretation of the public interest during the first two decades of broadcast regulation.     

Medicare program; physicians' referrals to health care entities with which they have financial relationships (Phase III). Final rule

This final rule is the third phase (Phase III) of a final rulemaking amending our regulations regarding the physician self-referral prohibition in section 1877 of the Social Security Act (the Act). Specifically, this rule finalizes, and responds to public comments regarding, the Phase II interim final rule with comment period published on March 26, 2004, which set forth the self-referral prohibition and applicable definitions, interpreted various statutory exceptions to the prohibition, and created additional regulatory exceptions for arrangements that do not pose a risk of program or patient abuse (69 FR 16054). In general, in response to public comments, in this Phase III final rule, we have reduced the regulatory burden on the health care industry through the interpretation of statutory exceptions and modification of the exceptions that were created using the Secretary's discretionary authority under section 1877(b)(4) of the Act to promulgate exceptions for financial relationships that pose no risk of program or patient abuse.     

The USPS as an OSP: A Remedy for Users’ Online Privacy Concerns

New digital technologies, and a legal system that has failed to keep pace, are allowing government and the private sector to engage in unparalleled unauthorized surveillance of online personal data contained in emails and in the aggregation of users’ online searches. This article argues that the U.S. Postal Service — compelled to protect communications privacy by its enabling statute, the Fourth Amendment, and other federal laws — should provide email and browser-search engine services to shield users from unauthorized online behavioral marketing and tracking by the private sector and metadata collection by government, and, just as important, give users legal remedies against such abuses. To that end, this article provides a legal analysis and rationale to support the USPS's authority to offer such nontraditional postal services.     

The Role of Trust in Nurturing Compliance: A Study of Accused Tax Avoiders

Why an institution's rules and regulations are obeyed or disobeyed is an important question for regulatory agencies. This paper discusses the findings of an empirical study that shows that the use of threat and legal coercion as a regulatory tool--in addition to being more expensive to implement--can sometimes be ineffective in gaining compliance. Using survey data collected from 2,292 taxpayers accused of tax avoidance, it will be demonstrated that variables such as trust need to be considered when managing noncompliance. If regulators are seen to be acting fairly, people will trust the motives of that authority, and will defer to their decisions voluntarily. This paper therefore argues that to shape desired behavior, regulators will need to move beyond motivation linked purely to deterrence. Strategies directed at reducing levels of distrust between the two sides may prove particularly effective in gaining voluntary compliance with an organization's rules and regulations.     

Interpretation of Unilateral Acts in International Law

The article explores the question of interpretation of unilateral acts in international law both from the perspective of ascertaining their binding force (law determination) and from the perspective of ascertaining their content (content determination). It argues that the objective intention of the author to be bound is what distinguishes binding commitments of unilateral origin from non-binding ones. In turn, this involves the interpretation of a unilateral act in accordance with its content and the circumstances surrounding its making. In practice, the use of clear and specific wording in conjunction with a set of contextual indicators are indicia of the intention to create a binding unilateral commitment. Against this backdrop, the article continues by addressing the question of interpretation of unilateral acts from the standpoint of ascertaining their content. It shows that the text of the act is the primary consideration in determining its content—and that its context as well as the circumstances surrounding its making are also interpretative elements that need to be taken into account. Due to the unilateral origin of these acts the interpretative rule applicable to international agreements can only be used as a point of reference when it comes to interpreting the content of these acts. In this light, the article concludes that more practice is needed in order to elucidate the exact role and weight that should be ascribed to non-textual elements in the context of interpreting unilateral acts. At the same time, the article argues in favour of adopting a broader approach to the concept of ‘interpretation’ in international law. Viewing interpretation not merely as content determination but also as law ascertainment allows us to better assess the persuasive value of arguments in favour or against certain interpretative rules when practice is scant—as is the case with unilateral acts.

     

Scandinavian Prospects for a Place‐Based Randomized Experiment on Burglary Reduction

Despite their widespread implementation, there is a surprising absence of clear‐cut, unambiguous evidence concerning the effectiveness of situational crime prevention approaches (e.g. alarms, neighborhood watch, property‐marking) on residential burglary. This absence of evidence—which should not be confused with a presence of contradictory evidence—stems most notably from the fact that very few of the programs enacted to date have been evaluated under controlled, experimental conditions. The current article describes problems with previous evaluations and advocates the use of a place‐based, randomized experimental design—which this author argues should be easier to implement in Scandinavia than elsewhere.     

The FDA may not regulate tobacco products as "drugs" or as "medical devices"

Professor Richard Merrill contends that the Federal Food, Drug, and Cosmetic Act does not grant the FDA regulatory authority over cigarettes and smokeless tobacco products. The fact that Congress did not expressly deny the FDA regulatory authority over tobacco cannot, Professor Merrill argues, be used to infer such authority. This inference is particularly inappropriate in the case of tobacco regulation, he maintains, because there is compelling evidence that Congress had no intention of delegating this authority to the FDA. He is unpersuaded that presidential approval legally sanctions the FDA's claim of authority by granting it a superficial political legitimacy. Finally, he reminds us of the FDA's own repeated denials of jurisdiction over tobacco products, and he recalls the numerous times that Congress passed legislation directed at tobacco without granting the FDA any role in its regulation. Professor Merrill's Essay, like the other pieces in this volume, was written after the United States District Court for the Middle District of North Carolina decided Coyne Beahm v. FDA, but before a three judge panel of the United States Court of Appeals for the Fourth Circuit reversed that decision in Brown & Williamson Tobacco Corp. v. FDA. In Coyne Beahm, the District Court held that the Federal Food, Drug, and Cosmetic Act authorized the FDA to regulate tobacco products, but not tobacco advertising. The Fourth Circuit rejected the District Court's jurisdictional ruling and invalidated the FDA's regulations in their entirety. The Clinton Administration has since requested an en banc rehearing before the Fourth Circuit.     

Preserving human potential as freedom: a framework for regulating epigenetic harms

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development and in disease causation. In a sense, epigenetics blurs the distinction between "nature" and "nurture" as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents' generation might affect our health now, even if we have not experienced the same exposures. In the same vein, current exposures could affect the health of not only individuals currently living but also future generations. Given the relative novelty of epigenetics research and the multifactorial nature of human development and disease causation, it is unlikely that conclusive proof can be established showing that particular exposures lead to epigenetic risks that manifest into specific conditions. Using the Capabilities Approach ("CA") developed by Amartya Sen and Martha Nussbaum, this article argues that epigenetic risk is not merely a medical issue, but that it more generally implicates the underlying fairness and justice of our social contract. For instance, how we develop mentally or physically has a tremendous impact upon our inherent capabilities and our set of life options. The CA prompts us to ask questions such as: (1) what impact do particular epigenetic risks have on our ability to exercise free choices; (2) are these risks avoidable; and (3) how are these risks distributed across society? Due to the complex nature of epigenetic risk, tort law is predictably incapable of addressing this harm. Further, while regulatory agencies possess the statutory authority to begin addressing epigenetic harms, currently these agencies are not attuned to measure or to respond to this type of harm. This article argues that it is imperative to initiate a regulatory framework to address epigenetic risk from specific substances even if conclusive proof of disease causation cannot be established. Shifting the burden of generating epigenetic risk data to producers of suspected harmful substances serves as a start. As information concerning epigenetic risks accrues, the regulatory response should evolve concurrently. As part of a dynamic policy-making approach our goals need to encompass the following: (i) promotion of knowledge in the scientific, legal, and public domains; (ii) assessment and modification of current regulations to address preventable risk; and (iii) an overarching commitment to protect human capabilities in an equitable manner.     

The decision of the Italian Constitutional Court on numerus clausus: A matter for Community law

This article discusses the recent decision of the Italian Constitutional Court on the numerus clausus issue, containing the first relevant pronouncement by the highest jurisdiction on the constitutional legality of the measures adopted so far by the Ministry. The Constitutional Court considers these measures in conformity with the Constitution to the extent that they implement Community law, and especially certain directives on the recognition of qualifications. Thus, Community law is deemed to provide the proper legal framework to adopt certain regulations, amongst which restrictions to access. This article argues that, in the context of litigation on access to university, Community law has been used improperly and that, in any event, a convenient solution to the issue could have been found in national law. This revised version was published online in July 2006 with corrections to the Cover Date.     

Maladaptation of regulation to hybrid organizational forms

This paper argues that standard regulatory policies might be inadequate and may even introduce perverse effects when applied to hybrid organizational forms. Using the case of the “certifying system” adopted for several French agricultural products as a benchmark for the discussion, with particular insights provided by the label chicken case, the paper emphasizes the tight coordination process required by the characteristics of the transactions at stake as well as by the necessity to send adequate signals to consumers. However, unadapted regulations tend to misinterpret the resulting contractual arrangement as collusion. This interpretation is challenged here: The form adopted achieves a high degree of efficiency and reduces transaction costs without reducing competition. We conclude that a new approach to regulations may be required, combining two criteria: contestability and remediability.