The need for performance auditing in the public sector and the best-practice frontier

The article is organized as follows. In Section 2 the arguments for performance auditing in the public sector are reviewed along the lines of the public-choice approach. An international comparison of the functions of supreme auditing institutions (Section 3) reveals that the BelgianRekenhof-Cour des Comptes lags behind, lacking a mandate for performance auditing. In Section 4 the notions of efficiency and effectiveness are clarified. Section S compares the concept of the best-practice frontier with a standard production function. In the public sector one is often confronted with a weak knowledge of the underlying technology. This poses problems of specification for a parametric estimation. Therefore a nonparametric frontier may be recommended. In Section 6 the Farrell method and the free disposal hull are presented. Moreover, when several inputs are transformed into a multiple output (instead of one single homogeneous output), data-envelopment analysis offers a solution (Section 7). These latter methods are also illustrated by an international empirical comparison of the efficiency of public enterprises: postal services in Section 6 and railway companies in Section 7. Some conclusions are reported in the final Section 8.     

Medicaid program; demonstration proposals pursuant to section 1115(a) of the Social Security Act; policies and procedures--HCFA and ACF. Public notice

This public notice informs interested parties of (1) the principles the Department of Health and Human Services ordinarily will consider when deciding whether to exercise its discretion to approve or disapprove demonstration projects under the authority in Section 1115(a) of the Social Security Act, 42 U.S.C. section 1315(a); (2) the kinds of procedures the Department would expect States to employ in involving the public in the development of proposed demonstration projects under Section 1115; and (3) the procedures the Department ordinarily will follow in reviewing demonstration proposals. The principles and procedures described in this public notice are being provided for the information of interested parties, and are not legally binding on the Department of Health and Human Services. This notice does not create any right or benefit, substantive or procedural, enforceable at law or equity, by any person or entity, against the United States, its agencies or instrumentalities, the States, or any other person.     

RECONCEPTUALIZING SANCTIONS

This article is an attempt to extricate sanction analysis from its criminological context and to focus on the sanction as an independent realm of knowledge. A framework for the study of sanctions based on power relations is suggested which has three major aspects: first, sanction form, of which seven types are identified (physical, economic, social, informational, political, privacy, and legal); second, sanction mode (postulated as either positive or negative); and third, arena of deployment, being either public or private. The advantages of this type of analysis over other sanction taxonomies are briefly discussed.     

Global Administrative Law: The Quest for Principles and Values

There is currently much interest in the question whether a globaladministrative law is coming into being and, if so, whetherthis is desirable or otherwise. This paper addresses the questionof principles for a global administrative law. It considersfour potential sources and their suitability as a foundationfor a global administrative law system: first, the largely proceduralprinciples that have emerged in national administrative lawsystems, notably the principle of legality and due process principles(Section 3); second, the set of rule of law values, promotedby proponents of free trade and economic liberalism (Section4); third, the good governance values, and more particularlytransparency, participation and accountability, promoted bythe World Bank and International Monetary Fund (Section 5);and finally, human rights values (Section 6). The paper endson a sceptical note, concluding that a universal set of administrativelaw principles is difficult to identify and not especially desirable.First, administrative law is primarily a Western construct,protective of Western interests. It may impact unfavourablyon developing economies. Secondly, the evolution of global administrativelaw in adjudicative forums is leading to an undesirable ‘juridificationof the political process’. The paper concludes that diversityand pluralism are preferable.     

Chinese Practice in Public International Law: 2006 (II)

Continued from Part I published earlier this year, this partof the survey covers materials reflecting Chinese practice in2006 relating to: Fundamental principles of international law(Section IV; territorial integrity, including Taiwan issue andTibet issue, non-interference of internal affairs and friendlyco-operation); International law of recognition (Section V;recognition of States and governments); International peaceand security (Section VI; North Korea nuclear issue, Iraniannuclear issue, Darfur issue, Kosovo issue, Great Lake regionissue, Lebanon–Israel conflict issue and Middle East issue);Anti-terrorism (Section VII); Non-proliferation and disarmament(Section VIII; general policy, nuclear disarmament, Treaty onNuclear Non-Proliferation of Nuclear Weapons (NPT), ComprehensiveTest Ban Treaty (CTBT), Treaty on the Central Asia Nuclear WeaponFree Area, Security Assurances for non-nuclear-weapon States,Fissile Material Cut-off Treaty (FMCT), Bacteriological (Biological)and Toxin Weapons and on Their Destruction (BWC), Certain ConventionalWeapons (CCW), Ottawa Convention, Non-Proliferation of Weaponsof Mass Destruction (WMDs) and Missiles, Illicit Trade in SALW,UN Disarmament Commission, Conference of Disarmament (CD) andPrevention of an Arms Race in Outer Space (PAROS)); InternationalLaw on Territory and Frontier (Section IX; Diaoyu Islands, NanshaIslands, China–India Territorial and Frontier Dispute,China–Russia Frontier); International Law of the Sea (SectionX; UN Commission on the Limits of the Continental Shelf, Conservationof Marine Bio-diversity Beyond Areas of National Jurisdiction,Fishery, Convention on the Conservation of Antarctic MarineLiving Resource, Marine Navigation, Delimitation and DevelopmentDisputes with Japan in East China Sea, Principle of MaritimeDelimitation with Other Countries, Base Points of the ChineseTerritorial Sea and The Issue of Suyan Islet).     

Fraud by Certified Public Accountants in Japan and the United States

In recent years, Japanese and American societies have been beset by massive corporate scandals involving accounting firms and their certified public accountants (CPAs). These scandals included major accounting frauds by CPAs and have led to deep distrust of corporate accounting in both societies. This paper provides a detailed probe into three major financial scandals in Japan and United States: Enron, Kanebo, and Livedoor. Case histories are used to highlight both the characteristics of frauds perpetrated by CPAs as well as the social reactions to these economic crimes in Japan and the US. Finally, the paper outlines similarities and differences in CPA frauds perpetrated in both countries and considers how cultural variations play a major role in producing these outcomes.     

Medicaid program; cost limit for providers operated by units of government and provisions to ensure the integrity of federal-state financial partnership. Final rule with comment period

This regulation clarifies that entities involved in the financing of the non-Federal share of Medicaid payments must be a unit of government; clarifies the documentation required to support a Medicaid certified public expenditure; limits Medicaid reimbursement for health care providers that are operated by units of government to an amount that does not exceed the health care provider's cost of providing services to Medicaid individuals; requires all health care providers to receive and retain the full amount of total computable payments for services furnished under the approved Medicaid State plan; and makes conforming changes to provisions governing the State Child Health Insurance Program (SCHIP) to make the same requirements applicable, with the exception of the cost limit on reimbursement. The Medicaid cost limit provision of this regulation does not apply to: Stand-alone SCHIP program payments made to governmentally-operated health care providers; Indian Health Service (IHS) facilities and tribal 638 facilities that are paid at the all-inclusive IHS rate; Medicaid Managed Care Organizations (MCOs), Prepaid Inpatient Health Plans (PIHPs), and Prepaid Ambulatory Health Plans (PAHPs); Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs). Moreover, disproportionate share hospital (DSH) payments and payments authorized under Section 701(d) and Section 705 of the Benefits Improvement Protection Act of 2000 are not subject to the newly established Medicaid cost limit for governmentally-operated health care providers. Except as noted above, all Medicaid payments and SCHIP payments made under the authority of the State plan and under waiver and demonstration authorities, as well as associated State Medicaid and SCHIP financing arrangements, are subject to all provisions of this regulation. Finally, this regulation solicits comments from the public on issues related to the definition of the Unit of Government.     

Punishment,Liberalism, and Public Reason

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many reasons proffered for punishment are in fact grounded in such views. This constraint, accordingly, limits what individuals can expect in terms of a societal response to crime. Section III develops the appropriate reasons for punishment in a modern, liberal regime. Here the article relies on a—largely undefended—conception of public reason as the most plausible theory of what reasons for punishment are available to liberals. Section IV offers some closing thoughts on why people might adopt a politically liberal view about punishment as their own, personal view about how they should relate to others.     

Failure by certain charitable organizations to meet certain qualification requirements; taxes on excess benefit transactions--IRS. Notice of proposed rulemaking

This document contains proposed regulations relating to the excise taxes on excess benefit transactions under section 4958 of the Internal Revenue Code (Code), as well as certain amendments and additions to existing Income Tax Regulations affected by section 4958. Section 4958 was enacted in section 1311 of the Taxpayer Bill of Rights 2. Section 4958 generally is effective for transactions occurring on or after September 14, 1995. Section 4958 imposes excise taxes on transactions that provide excess economic benefits to disqualified persons of public charities and social welfare organizations. The proposed regulations clarify certain definitions and rules contained in section 4958.     

Preserving the Copyright Balance: Statutory and Constitutional Preemption of Contract-Based Claims

Some copyright owners in the digital age have turned from copyright to contract law to protect their intellectual property, employing licensing agreements that override fair use and other public interest safeguards. State laws or common law claims that conflict with general copyright policy may be preempted through application of Section 301 of the Copyright Act or through general Supremacy Clause preemption. This article examines the role of preemption in protecting the public interest against attempts to circumvent the copyright law through such means. After examining the relationship between copyright and contract law, the article reviews the case law regarding statutory preemption and Supremacy Clause preemption of contract-based claims. It concludes that application of Section 301 preemption is not sufficient to protect longstanding principles in copyright law that are at risk from the increased use of contracts to displace default copyright rules. The article calls for the courts to return to Supremacy Clause preemption to prevent the degradation of important public interest safeguards in the copyright law.     

Organ Procurement and Transplantation Network; final rule revision of comment period and effective dates--HRSA. Extension of comment period and delay of effective date for the Organ Procurement and Transplantation Network

This document sets forth the revisions required by the Fiscal Year 1998 Supplemental Appropriations Act, Public Law 105-174, signed into law by the President on May 1, 1998. Section 4002 of that Act states that public comments on the Organ Procurement and Transplantation Network (OPTN) Final Rule are permitted until August 31, 1998, and that the OPTN rule will not become effective before October 1, 1998. This document is provided to notify the public about these provisions and to make corresponding changes to the regulation.     

Biological products regulated under Section 351 of the Public Health Service Act; implementation of biologics license; elimination of establishment license and product license; public workshop--FDA. Proposed rule; notice of workshop

The Food and Drug Administration (FDA) is announcing a public workshop to present issues related to the agency's proposed rule entitled "Biological Products Regulated Under Section 351 of the Public Health Service Act; Implementation of Biologics License; Elimination of Establishment License and Product License" issued recently in the Federal Register. The purpose of the public workshop is to provide interested persons an opportunity to more clearly understand the proposed rule and its effect on industry and the public.     

SUPER-SIZED KIDS:

Morbid obesity is an unfortunate problem that is only becoming worse everyday. The alarming aspect of it is that it is affecting people at a much earlier age; thus, young children are becoming morbidly obese and are experiencing the same health problems as middle-aged adults. The first section of this note defines morbid obesity and its causes and trends. Section two describes child neglect in general and then distinguishes medical neglect. Section three discusses education and prevention, which are both crucial steps in the struggle with weight-loss and weight-gain. Section four summarizes the beneficial aspects of removing a morbidly obese child who is in a life-threatening position from his or her parents. Section five highlights case-studies from California, Iowa, Indiana, New Mexico, and Texas, where children have either died or were removed from their families because of morbid obesity. Section six briefly touches upon similar child neglect scenarios where removal is permissible and compares those situations with those of morbidly obese children. The seventh section considers some credible counterarguments to government intervention, and the final section suggests some recommendations on how to prevent the morbid obesity crisis from becoming worse than it already is. Too many people are dying from weight-related problems already, yet morbid obesity is preventable! This severe state of obesity is something that can be controlled and prevented, but only if parents take an active role in their child's diet and exercise.     

The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective*

We discuss uses of social science definitions and research methods in judging compliance with the recently modified language of Section 2 of the Voting Rights Act. That Act now specifies a “totality of circumstances” effects lest for the existence of racial vote dilution. There are seven “typical” factors listed by the Senate Committee on the Judiciary in its report on the 1982 Voting Rights extension as among those which may be used to establish a Section 2 violation. Because of the nature of these factors, extensive (and often conflicting) testimony by social scientists has now become an inescapable feature of Section 2 litigation. We focus particular attention on one of the seven factors, racially polarized voting, because measurement of it is, as judged by recent litigation, the most controversial, the most complex, and the most important. We also discuss at some length another factor, racial campaign appeals, which also raises issues of appropriate definition and measurement. The aim of this paper is to contribute to a standardization of terminology and operationalization in an important public policy area, and to show how social science methodology can assist legal fact-finding.     

The Professionalization of Public Accounting: A Social Dilemma Perspective

This study uses a social dilemma model of auditing and a model of cooperative regulatory enforcement to provide a framework within which the evolution of self-regulation in the U.S. accounting profession is studied. From a social dilemma perspective, individual public accounting firms are best off, in a single period sense, by providing a low quality audit product, which is defined in terms of the degree of auditor acquiescence to managers' accounting method discretion. However, firms' collective welfare is maximized by high quality auditing. The cooperative regulatory model employed is premised on the existence of a plausible government threat of punishments and invasive regulations, which motivates self-regulation in an industry. We argue that prior to enactment of the securities acts, public accounting firms faced a social dilemma in which there were limited incentives for high quality auditing either voluntarily or through the establishment of self-regulation. The securities acts provided a plausible threat to which the accounting industry responded by implementing self-regulation in order to avoid invasive and costly government regulation. After the emergence of the accounting profession, there occurred a long period of cooperative regulation with the SEC. Management discretion over accounting methods increased during this time period and audit quality correspondingly decreased, suggesting possible inefficient capture of the SEC. Evidence of an evolution towards a tripartite form of regulation appeared in the 1970s when the SEC and public accounting began to be critically reviewed by Congress. From this time to the present, new regulatory threats have motivated a series of self-regulatory responses by public accounting to improve audit quality.     

An Integrated Theoretical Model of Sibling Violence and Abuse

Drawing on three theoretical perspectives (feminist, conflict, and social learning), an integrated analytical model of adolescence sibling violence and abuse is proposed. The model suggests that certain characteristics of the parents' relationship, various aspects of parent–child relations, and characteristics of the sibling relationship are major components in explaining sibling violence and abuse. These are mediated by individual sibling characteristics and sibling verbal conflict. The model should enable researchers to systematically examine, in a more holistic way, the factors related to violence and abuse, and to assess their relative importance in accounting for these phenomena.     

Flooding the Permafrost: The Role of Environmental Claims in the Effort to Regulate Global Warming Emissions

This article focuses on the role that public and private claims play in spurring, supporting, supplementing, and, at times, impeding, climate change initiatives. Sections 1 and 2 describe the essential features of greenhouse gases and briefly detail the history of federal initiatives and the collapse of will that precipitated many of the claims filed by states, municipalities, and environmental groups. Section 3 discusses plaintiffs' early challenges and efforts to compel regulatory action; nuisance actions that have been filed by states, public interest groups, and individuals; and the possible trajectory of future claims. Section 4 discusses the role of climate change claims in enforcing compliance, improving corporate responsibility, and promoting interorganizational benchmarking in governmental and market-based standards programs. Section 5 concludes with a discussion of the precautionary principle and ways in which companies can protect themselves against future climate change-related claims.     

Section 1983 litigation: An effective remedy to police misconduct or an insidious federalism?

In recent years the federal courts have experienced a dramatic increase in civil suits alleging police misconduct under the federal provision, 42 U.S.C. Section 1983, which was originally enactd as part of the Civil Rights Act of 1871. Section 1983, presently the second most litigated provision of the United States Code, grants a private right of action for redressing violations of federal and Constitutional rights committed by persons (including municipalities) acting under color of state law. The recent development of Section 1983 as a mechanism for controlling police misconduct has profound implications for New Federalism, public official conduct and traditional legal doctrines (such as the exclusionary rule). This study reviews the legal basis for civil liability remedies, examines the impact of recent developments on police behavior, and explores the policy considerations underlying an assessment of this expanding legal remedy as a viable option in preventing police misconduct.     

公安机关参与的矛盾纠纷多元解决机制的构建

矛盾纠纷多元解决机制是当今世界各国在纠纷解决和司法制度发展中面临的共同课题，化解社会矛盾纠纷，则成为公安机关现阶段的一个重要研究课题。以新时期公安机关参与矛盾纠纷多元解决机制的理论基础为依据，分析公安机关在化解矛盾纠纷多元机制中的主体地位和作用，找出公安机关在化解矛盾纠纷多元机制中的困境，提出完善公安机关化解矛盾纠纷多元机制的建议。     

公共治理困境与公法学的理性回应

公共治理是公共行政领域一种方兴未艾的模式,但公共治理不是万能的,也存在治理"失灵",存在政府"空心化",公共行政"能力赤字"、问责过程的复杂化、成本—收益计算模糊化、公众对政府的信任度降低等困境。公共治理不仅是一个政治学术语,也是重要的法学范畴,主要表现为公共治理以依法治理为前提,是公民参与、协商合作的持续互动,是追求平等、权利、尊严的过程。所以,面对公共治理的困境,法学策略显得尤为重要,应当彰显公共利益,树立有限政府理念,增强政府核心能力;厘清责任链,建立责任政府,加强非政府组织的责任承担能力;引入成本—收益核算机制,提高公共治理的效率;减少宪法规定的社会权种类,加强国家对民生的保障力度。