贫穷者如何获得正义——论我国公设辩护人制度的构建

在我国刑事诉讼中,很多被追诉人由于经济原因得不到律师的帮助.这不仅是我国刑事诉讼制度改革的一个"瓶颈",也很难使被追诉人获得实质意义的公平追诉和审判.相关法律虽然将刑事法律援助定位于政府责任,但同时也将其作为律师的义务;在司法实践中,法律援助的责任绝大部分是由律师承担.此种规定与做法,不仅与理不合,也导致了刑事法律援助在很大程度上流于形式.基于此,我国立法应当明确由国家和政府承担法律援助的责任,并在此基础上构建公设辩护人制度.     

The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law

This article demonstrates how the content and meaning of California's consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an "institutional-political" theory that demonstrates how organizations' construction of law and compliance within an organizational field shapes the meaning of law among legislators and judges. This study examines case law and more than 35 years of California legislative history concerning its consumer warranty laws. Using institutional and political analysis, I show how auto manufacturers, who were initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers first using manufacturer-sponsored venues. Organizational venue creation resulted in public legal rights being redefined and controlled by private organizations.     

国家福利与公益信托:贫困助学的路径取向与制度分析

贫困助学已经成为当前困扰和影响我国高等教育深化改革的重大问题,教育成本从家庭向国家分担的国家福利模式并不能完全消解当前贫困助学的困境。公益信托形式开展贫困助学有很多优势。因此,有必要在比较分析西方公益信托制度具体规则的基础上建立我国的教育公益信托制度。     

Speaking of Rights: The Influence of Law and Courts on the Making of Family Migration Policies in Germany

The impact of the judiciary on immigration policies has been simultaneously overestimated and underestimated. Migration scholars broadly assume that courts have forced liberal states to admit unwanted migration. Based on an analysis of family migration policy making in the Federal Republic of Germany (1975‐90), I show that the direct policy impact of court rulings was limited, as courts were reticent to impinge upon democratic sovereignty. However, the indirect impact of the courts was substantial. Political actors amplified the implications of rulings by interpreting the jurisprudence selectively and expansively. Thus, they turned speaking of rights into a powerful political resource.     

In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

“The Tree Is the Enemy Soldier”: A Sociolegal Making of War Landscapes in the Occupied West Bank

War landscapes have a particular sociology; they are also formed through distinct legal technologies. By examining the genealogy of trees as totemic displacements in the occupied West Bank I demonstrate how the Israeli/Palestinian war is deflected onto the landscape and how this deflection erodes the boundary between law and war. Dealing with issues of colonization, nationalization, and the way that these implicate landscape as a “natural alibi,” the article examines the intricate making of politics into nature. Further, it explores the ironic nesting of colonial processes from Ottoman, to British, to Zionist, and finally to the new Jewish settler society that seeks to unsettle the old colonial landscapes of this place. Utilizing a detailed interpretation of a range of interviews and participatory observations, the article unpacks the mutually constitutive relationship between law, technologies of seeing, and landscape, illustrating how this relationship is played out by various actors in the occupied West Bank.     

The Enemy Within: The Outlaw Motorcycle Gang Moral Panic

When there is a period devoid of sensationalistic biker news, the public’s concern about outlaw bikers can be quite low. All it takes is one overt act of violence to heighten the public’s fear of Outlaw Motorcycle Gangs. Outlaw Motorcycle Gangs are the most current “dangerous class” which have been the subject of a moral panic in Canada. Outlaw Motorcycle Gangs as organized crime bodies are deemed to be the single most serious threat to the country—the enemy within. The gang war in British Columbia is fuelled by drugs supplied by the Hells Angels and there is a wide spread fear that these evildoers are trying to harm and tear apart the fabric of our society. This article provides a critical in-depth analysis of the construction of an Outlaw Motorcycle Gang moral panic with the focus on Canada. The roles played by the media, politicians, and the public in using isolated, violent incidents to support their interests will be examined along with the interactions between these groups and the resultant punitive actions directed toward members of Outlaw Motorcycle Gangs.     

Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Antidiscrimination Laws

Existing empirical research suggests that human resource officials, managers, and in‐house counsel influence the meaning of antidiscrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance companies play a critical and, as yet, unrecognized role in mediating the meaning of antidiscrimination law through Employment Practice Liability Insurance (EPLI). My analysis draws from, links, and contributes to two literatures that examine organizational behavior in different ways: new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars' research on how institutions govern through risk. Through participant observation at EPLI conferences, interviews, and content analysis of insurance loss prevention manuals, my study bridges these two literatures and highlights how the insurance field uses a risk‐based logic to construct the threat of employment law and influence the form of compliance from employers. Faced with uncertain legal risk concerning potential discrimination violations, insurance institutions elevate the risk and threat in the legal environment and offer EPLI and a series of risk‐management services that build discretion into legal rules and mediate the nature of civil rights compliance. My data suggest that insurance risk‐management services may sometimes be compatible with civil rights goals of improving equality, due process, and fair governance in workplace settings, but at other times may simply make discrimination claims against employers more defensible.     

追续权:艺术家的福利

追续权是一项平衡艺术家与艺术品经营商之间经济收益分配的著作权法律制度.1920年,法国最早确立了追续权制度,后有五十多个国家引入该制度,我国《著作权法》第三次修改草案中增设了有关追续权的规定.追续权是艺术作品的作者从艺术品转售中获得收益的权利,是著作权中的报酬请求权,追续权的行使以获得销售信息为前提,并依赖于著作权集体管理组织,追续权如能得到著作权法的确认,还须制定具体的可操作的法律规范.     

Beyond Endogeneity: How Firms and Regulators Co‐Construct the Meaning of Regulation

What role do regulators and firms play in the construction of open‐ended regulatory terms? The new institutional legal endogeneity model posits that organizations respond to legal uncertainty by adopting formal structures to symbolically signal their compliance. These structures, however, tend to embody businesses' managerial and commercial values, as opposed to regulatory goals. Law becomes endogenous insofar as legal actors then defer to businesses' institutionalized ideas about regulation and compliance. Professionals, such as lawyers and human‐resource managers, and their strategic deployment of framing, are portrayed as the engines of the above process of legal endogeneity. By comparison, administrative agencies' strategies in shaping the meaning that corporations attach to the law are practically ignored. Building on a detailed case study of British financial firms' responses to the Financial Services Authority's Treating Customers Fairly initiative, this article problematizes the supposition of regulatory deference to business constructions of law. Instead, it develops a more balanced model that recognizes business professionals' and regulators' co‐construction of regulation and compliance. The process of regulatory meaning co‐construction, as depicted by this model, involves alignment and disputes between regulators' and professionals' strategic framing of regulatory concerns with tangible consequences for the enactment of regulation.     

家庭主义、去家庭化和再家庭化:福利国家家庭政策的发展脉络与政策意涵

在工业化浪潮下,家庭普遍经受了冲击与挑战。对此,西方福利国家在不同程度上介入了家庭,推动了家庭政策的普及与发展。从纵向看,福利国家家庭政策在褪去了19世纪晚期原初发展的稚嫩后,于二战后经历了从家庭主义向去家庭化的黄金时期,并在20世纪90年代以来的成熟与转型中表现出一致趋向,即在强调家庭责任的同时亦凸显了对家庭的支持。其政策意涵在于,不同国家应以更加包容、积极的视野促成不同政策主体的合力,以此调和家庭主义、去家庭化和再家庭化的关系,推动家庭整体与成员个体目标的协调发展,并促进资源在家庭成员内部的均衡配置。     

The Sooner the Better: The Arguments for the Use of Extended Welfare Assessment Grids in Animal Welfare Cases

Animals are protected under national animal welfare legislation, against intentional acts of cruelty and a failure to act, resulting in neglect and causing an animal to suffer. The Royal Society for the Prevention of Cruelty to Animals (RSPCA) bears the responsibility of investigating and prosecuting the majority of animal welfare offences in England and Wales. In recent years, how they operate has been criticised, and it has been debated whether they should be able to bring private prosecutions, and what their role should actually be. This criticism calls for a change in the way in which the RSPCA approach cases of animal welfare, to strengthen their continuing role in ensuring positive animal welfare is achieved and, where not, prosecuted. This paper outlines the need for a new approach and how it can be managed. Honess and Wolfensohn (Altern Lab Anim 38:205, 2010) have developed an Extended Welfare Assessment Grid (EWAG), a visualisation mapping tool of welfare impact, which has been useful for assessing the welfare of animals used in laboratories. This tool has proven so useful, veterinarians are now using it in veterinary hospitals to help assess whether an animal is likely to further deteriorate, due to disease and illness, and to show any short-term welfare impact on the animal (Williams in UFAW conference, Newcastle upon Tyne, 2018). This paper will explore the potential for the EWAG to be adapted to assess the welfare of animals when owners are not meeting the welfare needs of their companion animals. RSPCA can use it to support their assessments of the current welfare of an animal under a person’s ownership and whether the animal’s welfare will deteriorate should they remain under that ownership. The EWAG will be a useful tool for those working in animal welfare, such as the RSPCA, to help organisations to intervene earlier, work in partnership with an owner, and support their claims of a risk to animal welfare.

     

何以解开房价与政策的纠结

在房地产调控方式上,应多用法律而慎用政策。慎用政策可以减少急功近利,避免房地产业大起大落;多用法律可以充分发挥市场的调节作用,让房地产业在国民经济中获得平衡的发展     

我国行政决策听证制度发展与完善

本文从剖析行政决策听证的概念入手,在研究了我国确立和发展行政决策听证制度的必要性和梳理了我国行政决策听证制度的发展现状、不足及分析原因的基础上,联系中国法治改革实践,进一步提出了完善我国行政决策听证的对策:即在全社会培养程序法理念的同时构建系统化的行政决策听证制度。     

福利社会与发展中的斯堪的纳维亚福利国家

欧洲各国致力于福利国家的建设已逾百年,经历了两次世界大战.各国在社会投入水平和福利机构方面的巨大差异至今仍在,但是各国对于福利社会的可持续性的认可和公众对福利社会的高度承诺则是基本一致的.各福利社会有来自各方面的维系:中央政府或地方政府、公司企业、家庭和自发组织的机构.不同的福利社会体系与它们之间的关系长期以来对欧洲各福利国家有着不同的意义,形成了具有不同特点的福利制度.在20世纪最后十年里重建福利国家的痛苦过程中,经济增长和社会发展之间的关系一直是整个斯堪的纳维亚地区社会问题的争论热点.然而到目前为止,效率与平等之间的冲突大多得到了解决,在北欧五国都保持了福利政策的稳定.该地区独特的历史经验并不排斥发展中国家的政府和机构为了发展福利事业而积极推行普及政策所做出的努力.     

Military Tribunals or Civilian Prosecution: The Dilemma of Unlawful Enemy Combatants

As twenty first century America grapples with an increasingly amorphous yet sophisticated terrorist threat, it is illuminating to examine the evolving role of military and civilian courts and laws in our history and their relationship to due process and civil liberties during times of conflict. Caught in the gray area are those individuals who came to be designated as unlawful enemy combatants. Not quite soldier, spy, saboteur, or common criminal these new stateless terrorists have been held by some to be at the complete mercy of the Commander-in-Chief. As history has shown, in the wake of armed conflict, executive authority is often enhanced and tolerated in the name of national security. However, when these broadened powers cease to be regarded as an immediate necessity, the levers of politics, the Courts, and diplomacy invariably act to define both the limits on governmental authority as well as the extent of individual protections.     

How to Develop More Effective Policies Against Crime: Some Reflections on Drugs and Crime Research in an International Context

This paper offers some reflections on how to develop more effective policies against crime, drawing on more than 10 years of research experience on the international drug problem. The paper begins by trying to illustrate the so-called justice gap in the world, and explain why an institution such as the United Nations has a comparative advantage in closing that gap. It then details four lessons that the author has learnt from his own personal experience as head of research in the United Nations International Drug Control Programme, now called the United Nations Office on Drugs and Crime: (i) measure, count, and keep counting; (ii) publish or perish, either in inter-governmental default, or in public hysteria; (iii) limit the dangers of committing the euphemistic fallacy; and (iv) divorce research and policy, because research is policy-dependent; make research policy-relevant, and re-marry it to policy. Finally, the paper tries to show how these lessons can be applied in related areas and used as good practice in research on crime.     

先秦法家共同体的敌人:以法治国的规范理论

在揭示现代法治的起源和理念时,先秦法家的观点往往作为对立面而成为历史批判的靶子,我国法学界对"法治"和"法制"、"依法治国"和"以法治国"、"形式的、浅度的法治"和"实质的、深度的法治"等概念所做出的有意区分既加重了对先秦法家的打击,也中断了一种法治思想的文化连续性的思考方案。事实上,先秦法学关于以国为国、以法治国的基本主张开启了实证主义法学的先河,同时也为人的行为的分治理论和共治理论奠定了基础。     

How to Win Hearts and Minds: Corporate Compliance Policies for Sexual Harassment

Australian law provides incentives and encouragement for companies to develop their own sexual harassment policies. This paper reports on interviews with equal opportunity officers in Australia's financial services industry responsible for best practice sexual harassment policies. Their experiences evoke three scholarly critiques of corporate compliance as a regulatory strategy: (1) that corporate compliance programs are a means by which employees' lives are regimented and controlled by corporate governmentality, (2) or, even worse, that private management priorities subvert the principles of public‐regarding law while appearing to implement them, and (3) that even where law has some effect, regulatory strategies aimed at producing self‐regulatory compliance will provide insufficient deterrence to effect real change. The data however also show that the best of these best practice officers have themselves created complex strategies to resolve tensions between law and management, corporate goals, and normative pressures. In doing so, they have had to combine their personal, professional, and corporate commitments to "win hearts and minds" to antiharassment values by co‐opting management resources to compliance goals through strategic appeals to both "business case" arguments and the specter of public sanctions. This project of cooption depends on their own position and "clout" within the corporation.