金融危机背景下政府投资法价值取向初探

面对我国政府投资的社会现实,透析复杂自适应性社会系统基础可以发现,政府投资在我国所扮演的角色已远远超出公共物品提供及国民经济发展＂引动水＂的角色。本文探讨了政府投资角色多元与社会多层次效用期待背景下的法律应然价值取向,提出了在公共利益价值取向指引下的可量化价值标准。     

Legal Culture and State Building: Liberal Constitutionalism and <Emphasis Type="Italic">Droit Administratif</Emphasis> in early Twentieth Century Argentina

This paper deals with the ways in which jurists and law professors applied transnational systems of public law, in particular US constitutionalism and French droit administratif, in their approaches to the state building process in late nineteenth century Argentina. In covering these movements of adaptation of a nascent legal culture to changing ideological and political circumstances, this article attempts to illuminate the strong links between the process of institutionalization of certain academic disciplines or forms of social knowledge, and modern state building in Latin America.     

治理语境下的多元行政法

治理理论给行政法治模式带来了深刻变革,治理机制全方位激励治理主体的普遍参与,尽可能地拓展、开放公共过程,多元行政法由此勃兴。与传统行政法关注行政主体与相对人权利义务关系的视角不同,治理语境下的多元行政法将视野扩展到了跨国治理机构、企业、社会组织等其他治理主体,关注治理网络中不同主体之间的协商与合作。行政法基本原则并未伴随着国家角色的回退而限缩,而是在拘束行政机关的行政行为之外,扩展到了更多承担公共治理任务的主体。治理工具也从过去政府"控制—命令"的传统方式,转向了软硬结合的多元化态势。     

Retrieving the ‘subject’ of European integration

In this article, a critical reinterpretation of citizens as subjects of European integration moves the focus of EU law from EU citizens' subjection to their subjectification. This analysis draws on post‐structural social theory in arguing that the law is instrumental to securing the material conditions for transnational political subjectification because it regulates both EU citizens' access to transnational social relations and the perception of difference between them. However, the law also reinforces constraints on the process of transnational subjectification. Systematic obstacles, which must be taken into account, are not limited to economic status, but include other variables like gender or age. It will be argued on this basis that EU law needs to develop a more coherent politics of subjectivity. Towards this goal, the law must carefully attend to what is (and is not) depoliticising in EU citizenship rights.     

Public Interest Law Organizations and the Two‐Tier System of Access to Justice in the United States

Public interest law organizations (PILOs) are important institutions for providing access to justice in the United States. How have political, economic, and institutional factors shaped PILOs? How do PILOs vary in the services they offer and in their geographical location relative to poverty and population in the United States? This article investigates these questions by combining original survey data from a representative sample of public interest law organizations with GIS data on population and poverty. We find that the presence of a PILO is positively related to political progressiveness and population at the county level, but negatively related to the concentration of poverty. Our analysis reveals a two‐tier system of public interest representation in which national organizations engage in a variety of social change strategies, whereas local and regional organizations utilize more limited strategies and depend more on governmental funding. These patterns have implications for access to justice in the United States today.     

Responsive Adjudication and the ‘Social Legitimacy’ of the Internal Market

This article is concerned with the social legitimacy of EU free movement adjudication. What does social legitimacy entail within the multi‐level ‘embedded liberalism’ construction of the internal market? How can the objective of free movement (market access) and a commitment to social diversity both be pursued without one necessarily trumping the other? This article seeks to contribute to these questions on the basis of a discussion of what has come to be known as the argument from transnational effects and the development of an adjudicative model that can be termed ‘socially responsive’. On the basis of an ‘ideal types’ analysis of the case law of the Court, it is concluded that responsiveness to Member State social context is lacking in any coherent form in the case law of the Court of Justice of the European Union. However, a responsive model of adjudication can be (re)constructed by streamlining the identified ideal type adjudicative rationales. In the midst of this process of discovery, an operational rationale to establish the substantive (social) scope and reach of the internal market shall be submitted.     

Framing the Local and the Global in the Anti-nuclear Movement: Law and the Politics of Place

This article examines the politics of place in relation to legal mobilization by the anti-nuclear movement. It examines two case examples – citizens' weapons inspections and civil disobedience strategies – which have involved the movement drawing upon the law in particular spatial contexts. The article begins by examining a number of factors which have been employed in recent social movement literature to explain strategy choice, including ideology, resources, political and legal opportunity, and framing. It then proceeds to argue that the issues of scale, space, and place play an important role in relation to framing by the movement in the two case examples. Both can be seen to involve scalar reframing, with the movement attempting to resist localizing tendencies and to replace them with a global frame. Both also involve an attempt to reframe the issue of nuclear weapons away from the contested frame of the past (unilateral disarmament) towards the more universal and widely accepted frame of international law.     

Private Regulation of Food Safety by Supermarkets

Food safety is a highly debated issue. Food industry organizations, retailers and national and transnational governments have been trying to find new ways to regulate food safety. Can private regulation of food safety meet the high expectations? A review of existing literature shows some conditions to be important for effectively protecting public interests by private regulation. In particular, retailers worldwide are actively engaged in setting food safety standards for their suppliers. A case study of food safety regulation by Dutch retailers shows that they can force food industry organizations and producers to accept food safety standards because of their economic (market) power.     

论“国际行政”类型界分

国际行政法概念的前提是所谓“国际行政”的存在.通过对全球治理中不同类型的规制主体进行理论界分可以对国际行政做出适当的阐释,划分的标准为主体的固有特征及其权力行使方式,在这个基础上把国际行政划分为国际组织的内部行政、正式的政府间国际组织的行政、私人机制国际组织的行政、公私混合型国际组织之行政、基于国内官员之间合作安排的跨国网络实施的行政、一国国内当局实施的涉外行政等六种.事实上每一种形态都包含众多的跨国规制机构,这只是选取其中最为典型的跨国规制机构重点进行阐述.当然,这种界分是一种为便于研究的相对理想化的做法,在实践中,许多形态的规制机构界限并不是非常清晰,或者是相互重合的.这仅仅是试图对国际行政法所调整的行政关系类型化的一种尝试性的概括.     

Constitutionalism,populism, and the imaginary of the authentic polity: a socio-legal analysis of European public spheres and constitutional demoicratization

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.     

Rethinking nongovernmental organizations: Neoliberalism, “nonstate” actors,and the politics of recognition in the United States

This article builds on and contributes to the scholarship on social movements and the law by revealing the critical function of nongovernmental organizations (NGOs) in law and policy in neoliberal times. Building on frame theories in social movement literature, this essay uses the lens of NGO-produced advocacy for binational same-sex couples to consider more broadly the relationship between individual experience, subjectivity, and the discourses and practices employed by NGO actors. It offers an analysis of both how NGOs developed and utilized particular messaging strategies and rhetorical frames to discursively produce a normative image of their constituency, and how constituents navigated and made use of the framing strategies developed by NGOs in their own claims to state rights and recognition. This discussion thus highlights the potentials and the problematics of the NGO model in social movements' efforts toward legal and political change.     

Fueling global crime: the mechanics of money laundering

Money laundering has been practiced in one form or another for thousands of years, dating back well before the birth of Christ, when highly motivated merchants moved their wealth beyond the confiscatory grasp of local rulers. Only in the recent past was the name ‘money laundering’ given to this financial hocus‐pocus. Popularly believed to have derived from Mafia ownership of Laundromats through which an endless stream of cash generated by extortion, prostitution and gambling flowed, ‘money laundering’ did not attract serious interest until the 1980s, and even then it fell primarily within a drug trafficking context. The phenomenon has pushed its way into the public consciousness as a mechanism used not only by traditional ‘underworld’ organizations, but some corporate and financial sector entities as well as individuals. Perhaps the events of 11 September 2001 did more to change the perception of money laundering as public discourse is now focused on methods used by terrorists to secure financing for their nefarious deeds. In point of fact, transnational criminality generally is exploding on a global level and money laundering is the lynchpin of their success. This article presents an overview summary of basic money laundering methods and is meant to help lay the foundation for further exploration.     

Using the Citizen to Bring the Refugee In: Gerardo Ruiz Zambrano v Office national de l'emploi (ONEM)

The decision of the CJEU in Zambrano was seen as another example of an over‐active judiciary in Luxembourg. This comment suggests, on the contrary, that the case has too little reasoning to open any ‘floodgates’ but that in setting out a new logic for EU citizenship, the Opinion offers an approach which limits the global approach to free movement case law and uses citizenship status to include rather than exclude the refugee.     

The Legal and Social Construction of Value in Government Procurement Markets

The Public Services (Social Value) Act 2012 introduces a social value duty. It requires public authorities in England and Wales that are carrying out procurement activities to ‘consider’ how such activities might ‘improve … economic, social and environmental well-being’. This article analyses qualitative, empirical data on how the social value duty has been interpreted and applied across local government in England. Although only a weak legal duty, this law has made a notable impact on practice. The article explains the changes brought about in practice under the social value duty and seeks to understand why these changes have occurred. It does so by recognizing local government procurement markets, as well as local government organizations themselves, as strategic action fields. In these fields, there are competing visions for social value. It is through conversations between actors that a common meaning comes to be attached to the law.     

Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization's initial response to the COVID-19 pandemic, a the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.     

Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law

Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle, and unsettle across different countries. At a time of growing doubt about the benefit of criminalization of drug use, it also provides a case‐study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long‐entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the ‘drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant.     

Legal Mobilization on the Terrain of the State: Creating a Field of Immigrant Rights Lawyering in France and the United States

Scholarship on law and social movements has focused attention primarily on the United States, and secondarily on countries that share the Anglo‐American legal tradition. The politics of law and social movements in other national legal contexts remains underexamined. The analysis in this article contrasts legal mobilizations for immigrant rights in France and the United States, and explores the relations between national fields of power and legal practices. I trace the institutionalization of immigrant rights legal organizations in each country and argue that the divergent organizational forms and litigation strategies adopted by professionalized movement organizations reflect the dynamics of the nationally distinct fields of power relations within which law reform has been conducted. My analysis links the material and symbolic resources available to law reformers to the relative authority of private and public juridical actors in each state.     

Expanding Media Law and Policy Education: Confronting Power,Defining Freedom,Awakening Participation

The changes brought about by the Digital Age have not triggered significant increases in political participation or meaningful reductions in longstanding social power asymmetries, which are now increasingly negotiated in policy contexts that involve mass media (surveillance, big data, net neutrality). At the same time, new technology and communication patterns have opened fissures in public opinion about the limits of free expression while also creating new legal risks for citizen-communicators. This article suggests that universities need to recalibrate their curricula to meet the exigencies of this moment, which should include an increased emphasis on media law and policy courses and initiatives. The article outlines a rationale for action, and some strategies, based on the need to: (1) expand citizens’ expressive agency by equipping them with the knowledge to shield themselves from overt restraints and subtle forms of coercion; (2) deepen citizens’ civics knowledge, enhance their political efficacy and enable their political participation; (3) facilitate citizens’ engagement in reemerging debates about the meaning and scope of the First Amendment; and (4) spur citizen involvement in confronting pressing constitutional and media policy issues whose resolution will ultimately shape the broader balance of social power.     

How Race,Sex, and Age Frame the Use of Authority by Local Government Officials

Thanks to the civil rights movement, women and racial and ethnic minorities increasingly hold positions of public authority—but they experience and exercise this authority differently from white men. Based on 162 narratives collected from 49 US local government officials (city administrators and police), I find that women, minorities, and younger officials in positions of authority face a paradox of rules. Because they have lower social status with the public and within their organizations, they must rely on formal and explicit rules as a key basis for their authority, but such reliance causes their very authority to be questioned. Social status based on implicit assumptions about social identities, including race or ethnicity, sex, and age, originates outside of organizations and has effects society wide. This study shows that social status continues to permeate US local government organizations in both subtle and explicit ways, even in bureaucratic settings that are formally committed to merit and professional norms.     

Investment Treaty Law and the Fear for Sovereignty: Transnational Challenges and Solutions

This article addresses the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develops a new normative framework for interpreting these treaties. It focuses on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature. The analysis shows that a teleological approach to interpretation imposes boundaries on the meaning of substantive IIA provisions. The article then elaborates how the transnational dimension of IIAs provides a benchmark, which is the level of protection offered to economic actors against interference by the state in countries with the highest rule of law standards. The article then shows how the resulting challenges of comparative public law could be addressed through the methodology of re‐ and pre‐statement of transnational uniform ‘principles’: sophisticated and detailed rules striking the proper balance between private economic interests and the public regulatory interest, so as to provide more legal certainty for both investors and host states.