From a ‘peasant parliament’ to a ‘professional parliament'? Change in the Icelandic Althingi

The present article seeks to describe and analyse parliamentary change in the Icelandic Althingi, probably one of the least known of the west European legislatures. The first question asked is ‘Has there been a professionalisation of the Icelandic parliament?’ and, secondly, ‘Has there been a professionalisation of Icelandic legislators?’ The article is in three sections. The first gives a very brief overview of the main institutional features of the Althingi before 1991. The second focuses on changes in the legislative capacity of the Althingi, whilst the third explores possible changes in the legislative culture of the assembly. The study draws on three sources: official statistical material and other parliamentary documentation; discussions with senior parliamentary staff; and hour‐long interviews with three veteran Atlhingi members boasting a total of 80 years parliamentary experience between them.     

Disentangling legislative duration in coalitional presidential systems

ABSTRACT

The speed and actions that bills face in legislatures vary immensely, but we do not have a comprehensive framework to analyse legislative durations. Moreover, the absence of data detailing legislative activities and durations in distinct stages of legislative processes hinders analysis. This article presents a framework for analysing legislative delay in coalitional presidential systems and examines unique data on durations, attributes, and parliamentary activities in legislative processes at the level of individual proposals. The empirical analysis investigates executive proposals considered by the Brazilian Congress and seeks to disentangle when duration means legislative activism, when it is due to political conflict, and when it only represents inertia. Our analysis indicates substantial activities in both content-influencing legislative activism and politically motivated obstructionism. Hence, political conflict is as important a source as policy disagreement in accounting for legislative delay. By examining a hitherto untapped area with rich data, this study opens up new venues for rigorous analyses of legislative durations and gridlock.     

How Parties Create Electoral Democracy,Chapter 2

Parties neither cease to exist nor cease to compete for office when the general election is over. Instead, a new round of competition begins, with legislators as voters and party leaders as candidates. The offices at stake are what we call “mega‐seats.” We consider the selection of three different types of mega‐seats—cabinet portfolios, seats on directing boards, and permanent committee chairs—in 57 democratic assemblies. If winning parties select the rules by which mega‐seats are chosen and those rules affect which parties can attain mega‐seats (one important payoff of “winning”), then parties and rules should coevolve in the long run. We find two main patterns relating to legislative party systems and a country's length of experience with democratic governance.     

Nontraditional Students, Accelerated Programs, Grade Expectations, and Instructor Evaluations

This article is intended as both a cautionary tale and an encouraging guide for instructors who are beginning to teach in accelerated programs designed to attract nontraditional students. This article is based, in part, on classroom action research conducted through surveys, observations, exams, and assessments, in an introductory business law course taught in two different universities. Initially, this article seeks to define and examine the particular issues of the nontraditional student using demographic and anecdotal data gathered on nontraditional students at the University of Cincinnati and traditional students at Southeast Missouri State University. Special attention is given to the role of gender and role strain in nontraditional students. Role strain has three dimensions: (1) role conflict from simultaneous, incompatible demands; (2) role overload (insufficient time to meet all demands); and (3) role contagion or preoccupation with one role while performing another. The article also examines the relationship between grade expectations/grade inflation and instructor evaluations.     

Three Kinds of Intention in Lawmaking

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an illocutionary one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent.     

欧共体法中的相称性原则

相称性原则是欧共体法中的一项一般法律原则。其适用范围不仅包括共同体措施 ,而且包括成员国国内措施 ;不仅适用于行政行为 ,也适用于立法行为。适当性、必需性和最小限制性是相称性原则的三个构成要素。相称性原则与从属原则既有密切联系 ,也有本质区别。就其功能而言 ,相称性原则是欧共体法院司法审查的基础 ,是支配共同体行使权能的原则 ,是建立内部市场的指导原则     

Government,Parliament and Law-making in Poland

This paper examines the process of law-making in Poland during the 1997–2001 and 2001–2005 legislative terms. The analysis focuses on the initiation, amendment and finalisation stages of the legislative process within both the government and parliament and considers the boundary, content, temporal and information rules that shape this process. Within government, the preparation of, and decision-making on bills to be submitted to parliament are characterised by a dominance of ministerial law-making strategies, with a very limited coordinating capacity for the core executive (that is, the cabinet, the prime minister and the institutions that serve them). Within parliament, the government possesses weak agenda control and few formal means of defending its legislation against rival bills and amendments. There is some evidence to suggest that this decentralised legislative setting is one of the key drivers behind legislative growth and instability.     

Impact Assessment of EU Non‐Legislative Rulemaking: The Missing Link in ‘New Comitology’

Impact assessment (IA) has gone from an innocuous technical tool typically used in the pre‐legislative phase to an instrument at the heart of the European institutional machinery. However—in deviation from its roots as a tool governing delegated rulemaking in the US—most experience with IA in the EU has been gathered in a legislative context. Against the background of the recent evolution of the EU's old ‘comitology’ system into a two‐track system of delegated acts and implementing measures, this contribution discusses in three parts the ‘whys,’ ‘whats’ and ‘hows’ of extending IA to ‘non‐legislative rulemaking.’ It explores various aspects of the rulemaking process that IA—if properly applied—could strengthen: consultation, control and quality.     

从相互协助到相互承认——欧盟刑事取证立法变迁探析

欧盟刑事取证立法建立在两个不同原则上,一是传统的相互协助基础上的立法,一是1999年坦佩雷会议后,相互承认基础上的立法;这两种立法在欧盟范围内并存。从未来发展看,相互承认基础上的立法将逐步取代相互协助基础上的立法。欧盟理事会2008年12月通过的《欧盟证据令》是欧盟在相互承认基础上取代原有刑事取证立法的第一步,对原有立法进行了制度性革新。欧盟刑事取证立法在取得显著进步的同时,在相互承认原则和公民基本权利保障等方面也面临着诸多挑战。     

UNGER'S CRITIQUE OF FORMALISM IN LEGAL REASONING: HERO,HERCULES, AND HUMDRUM

“Doctrine can exist—the formalist says or assumes—because of a contrast between the more determinate rationality of legal analysis and the less determinate rationality of ideological contests. This thesis can be restated as the belief that law making and law application differ fundamentally, as long as legislation is seen to be guided only by the looser rationality of ideological conflict… The modern lawyer may wish to keep his formalism while avoiding objectivist assumptions. He may feel happy to switch from talk about interest group politics in a legislative setting to invocations of impersonal purpose, policy, and principle in an adjudicative or professional one. He is plainly mistaken; formalism presupposes at least a qualified objectivism.”     

Legislative Professionalism and Influence on State Agencies: The Effects of Resources and Careerism

Legislative professionalization typically involves two concomitant processes: increasing institutional resources and increasing careerism among state legislators. These processes, we argue, entail different effects for legislative influence on state administrative agencies. Greater legislative resources serve to increase legislative influence, but greater political careerism among state legislators serves to decrease it. Because these two processes are normally intertwined within the process of legislative professionalization, the net effect of professionalism is uncertain, although our analysis suggests that the negative effect of careerism may outweigh the positive effect of institutional resources. These results have significant implications for the democratic responsiveness of executive branch agencies.     

Interests,Instruments and Institutional Preferences in the EU Comitology System: The 2006 Comitology Reform

This paper seeks to reveal the institutional interests of the Council of Ministers, the European Parliament and the Commission in the comitology system. This is done by an investigation of the 2006 comitology reform, which introduced the regulatory procedure with scrutiny. This reform was the result of developments in four areas: the Lamfalussy reform in the area of financial regulation; the controversial use of comitology in the area of GMOs, food safety and the environment; the failed Constitutional Treaty; and the amending of the 1999 comitology decision. The analysis shows that the reform was the result of a two‐dimensional constitutional struggle. The first dimension concerns the relative supervisory position of the two legislative actors, the Council and the European Parliament. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. In theoretical terms, the analysis demonstrates an example of T.M. Moe's ‘politics of structural choice’. The paper ends by drawing lessons for the negotiations on the new comitology system following the Lisbon Treaty.     

Governing Without Surviving? An Italian Paradox: Law-Making in Italy, 1987-2001

Almost 25 years ago, Di Palma portrayed the Italian political system as one in which parties, executives and political élites survived without governing. Much of his interpretation was based upon a careful empirical investigation of the actual functioning of the legislative process. We adopt the same perspective in order to evaluate if, after the major events and institutional transformations which have shattered the Italian political landscape, Di Palma's original hypothesis still holds at the turn of the century. In spite of the lack of control of the ordinary legislative process exhibited by executives in the last four legislatures (1987-2001), together with a marked systemic instability, the last few years have witnessed the successful introduction of significant reforms in several sectors. Paradoxically, during the 1990s, the major political actors have shown themselves to be more capable of governing than of surviving.     

Political structure,legislative process,and corruption: comparing Taiwan and South Korea

Taiwan and South Korea have the same constitutional system, approximate economic scale, and similar cultural backgrounds, yet they differ in degree of corruption. What political structures and legislative processes cause this outcome is the major question posed in this paper. The political structure in South Korea is a centralization-of-power model, while that in Taiwan is a separation-of-powers model. This paper proposes that Taiwan and South Korea have different types of corruption and different political structures, and the legislative process in South Korea is more compromising than that in Taiwan. These factors contribute to greater corruption in South Korea than in Taiwan. This study clarifies how particular institutional dynamics reduce or enhance the prospects for democratic governance and help to better understand how political structure and legislative process channel different types of corruption into different degrees of corruption. Studies on the relationship between constitutional structure and corruption have concluded that parliamentarism can help reduce corruption more than presidentialism. This thesis argues that a country with centralized power tends to be less corrupt than a country with separation of powers. If this argument and the rationale behind it hold true for countries with both parliamentary and presidential systems, we can expect that semi-presidential countries with a centralized system are less corrupt than those with a decentralized system, all else being equal. However, by comparing these two semi-presidential countries, we find that South Korea, with its centralized model, was more corrupt than Taiwan, with its decentralized model. This comparative case study provides a counterargument to the conventional wisdom of constitutional structure and governance.     

“The ‘New’ Malaysian Criminal Procedure: Criminal Procedure (Amendment) Act 2006”

This paper explores the reform process surrounding the recent changes to the Malaysian Code of Criminal Procedure concerning statements made to police officers, discovery, body searches, rights to legal advice and detention. The Criminal Procedure (Amendment) Act 2006 was the first major piece of legislation to reform the criminal process in Malaysia for 20 years and represented an attempt not only to deal with specific problems relating to police practice and the pre-trial process, but also to single out Malaysia as a progressive state within Asia committed to the Rule of Law. The problem which this paper seeks to address, however, is that while many of the reforms appear to be a welcome attempt to protect suspects in police custody from abuse (a startling contrast to the recent legislative measures introduced in the UK as part of the “war on terror”), to better regulate police investigations and to improve the overall quality of justice administered pre-trial, a doubt lingers as to the direction of that reform and of the values guiding the criminal process. It will be argued that, without clear cultural markers, implementation of the new measures is likely to be piecemeal and previous cultural practices will continue to undermine even the best of legislative intentions.     

Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs

Abstract:  The question of strengths and weaknesses of national parliaments in EU affairs, one of the most salient in the debate on the democratic legitimacy of the EU, is generally answered by assessing formal parliamentary powers which can influence their governments' EU policy. Such an evaluation, however, is flawed: Formal mandating rights are usually incompatible with the overall logic of parliamentary systems, which explains why most national parliaments make very little use of them. Even more importantly, it unduly reduces parliamentary functions to the legislative or policy-making function. Drawing on agency theory, it will instead be argued that the functions of public deliberation and of holding the government publicly to account are at least as important and therefore need to be included in a redefined concept of parliamentary strength. In particular, the article proposes a distinction between two different elements of accountability—monitoring and political scrutiny—which recognises parliamentary majority and opposition as two distinct agents of the electorate.     

When Do Challengers Succeed? Nongovernmental Actors,Administrative Agencies,and Legal Change: Shifting Rules for Oregon's Private Forests

Regulatory regimes are notoriously resistant to change, so when less powerful actors manage to reshape long‐established rules and gain increased access to a natural resource the interesting question is why? This article investigates relations between different claimant groups and the state in the reshaping of the regulations governing Oregon's private forestlands, how this process was mediated by broader political opportunities and constraints, and the conditions that supported a shift in the legal regime that benefited less advantaged interests. The intent is to deepen our understanding of the circumstances under which well‐established rules of governance are altered. Analysis points to each of the following variables as significant for successful reform: (1) active challengers and their success in reframing issues to support their goals, (2) new political opportunities facilitating wider participation in the rulemaking process, and (3) concurrence between local and national aspirations supporting reform. While each condition is noteworthy, it is insufficient on its own. Rather, my study comparing two contested administrative rules suggests that a clear alignment of all three variables provides the strongest impetus for legislative and administrative rule changes at the state level benefiting less advantaged interests.     

The patient protection and affordable care act: the victory of unorthodox lawmaking

The 2010 Patient Protection and Affordable Care Act was a major legislative achievement of the 111th Congress. This law structurally reforms the US health care system by encouraging universal health care coverage through regulated competition among private insurance companies. When looking at the process for reform, what strikes an observer of US health care policy in the first place is that the Democratic majority was able to enact something in a political field characterized by strong resistance to change. This article builds on that observation. Arguments concentrate on the legislative process of the reform and support the idea that it may be partly explained by considering an evolution of US legislative institutions, mostly in the sense of a more centralized legislative process. Based on approximately one hundred semidirected interviews, I argue that the Democratic majority, building on lessons from both President Bill Clinton's health care reform attempt and the Republicans' strategy of using strong congressional leadership to pass social reforms, was able to overcome institutional constraints that have long prevented comprehensive change. A more centralized legislative process, which has been described as "unorthodox lawmaking," enabled the Democratic leadership to overcome multiple institutional and political veto players.