Is a Local Government’s Decision ‘In Writing?’:The U.S. Supreme Court to Rule

Abstract

An application to place a 108‐foot‐tall cell tower in a residential neighborhood. An outpouring of opposition. A public hearing. A denial—by unanimous vote on an oral motion. And a letter to the applicant stating that the application had been denied and referring to the hearing’s minutes, which reflect reasons why the board may have denied the application. These are the key facts of T‐Mobile South, LLC v. City of Roswell, No. 13‐ 975, a case that the U.S. Supreme Court will consider this fall. The case’s central legal question is also straightforward. The Telecommunications Act of 1996 states that “ [a]ny decision . . . to deny a request . . . shall be in writing. ” The Court will decide whether it is sufficient for a city to state in writing that it has denied the application and to refer to the record, or whether the written denial must also describe the reasons for the city’s decision. The case could have significant impacts on how local zoning boards function and on the form their decisions must take to survive legal challenge. It also could lead to effects on local governments well beyond the narrow issue presented here.     

Public or Personal Character in Election Campaigns: A Review of the Implications of the Judgment in Watkins v Woolas

Reviewing the Election Court's decision that a candidate's parliamentary election literature was unlawful under the Representation of the People Act, the Divisional Court held that statements could either be about a candidate's public character or his personal character but not both. Though the legislation was compatible with the ECHR if it penalised only the latter, the question for the courts is really a matter of whether statement impugns a candidate's character more than merely as a necessary implication of an allegation regarding conduct such as the breaking of election promises.     

Beyond the Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning

It has frequently been remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.     

Absolutism and the ‘rule of law’ in Denmark 1660–c. 1750

With the introduction of absolutism in Denmark, the country became one of the two most absolute monarchies in Europe. The question arises whether the concept of the ‘rule of law’ was compatible with absolutism, or whether it was totally contrary to this form of government. Through an analysis of the criteria central to the concept of the ‘rule of law’, for example, the public proclamation of laws, the independence of the courts, predictable proceedings, the right of appeal, due care, legal aid, promptness of legal proceedings etc., and evidence of practice from public records, the present article concludes that although the ‘rule of law’ was fragile, as it depended on the absolute king's mercy, there was an ideal among the ruling elite that the ‘rule of law’ ought to be respected, and the rural and urban population trusted the system.     

论政府决策失误责任追究制

自改革开放以来,我国中央政府就一直强调要实现决策科学化与民主化。经过20多年来的努力,中央已基本实现由传统经验模式向现代科学模式的转变。但在地方各级政府决策中,失误的现象却屡禁不止,给国家和社会造成了巨大损失。造成这种现象的原因在于我国未能建立有效的决策失误责任追究制。     

Mt. Laurel: Is it Based on Wishful Thinking?

“The people of New Jersey should welcome the result reached by the Court in this case, not merely because it is required by our laws, but, more fundamentally, because the result is right and true to the highest American ideals.” With these words Justice Pashman, in his concurring opinion, set forth the underlying assumption upon which the New Jersey Supreme Court based its decision to make the validity of municipal zoning dependent upon a new and complex standard. Mt. Laurel clearly establishes a new judicial standard for judging the validity of municipal zoning. However, whether that standard is likely to achieve its laudable objectives or whether its chances of success will be limited by political realities' that belie the noble ideals upon which the decision is based, remains to be seen.     

外资收购企业国有股的法律问题

外资收购我国地方企业国有股已在一些地方出现 ,这是“国有股减持”一种广义的尝试。这种收购有一些问题需要研究 ,包括这类收购的具体法律依据 ;商业市场上的自愿与合意在社会公平性方面是否具有合理性 ;这种收购中是否具有潜在管理层收购 ;这种收购对地方就业问题有何影响 ;政府对此种收购有何行政职责。     

On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.     

The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.     

New Labour’s communitarianism,supporting families and the ‘rationality mistake’: Part II

In Part I of this study, we argued that New Labour is keen to use legislation to promote what it sees as desirable family forms and to discourage other, less-favoured family practices. The codification of this approach in the 1998 Green Paper Supporting Families - and, in particular, the 'New Deal for Lone Parents' - was compared with recent empirical research on how people make decisions about their moral economies. We concluded that the government's approach is subject to a 'rationality mistake' - people do not make decisions in the way the government assumes and hence legislation can be inefficient or even oppressive. Here, we examine this contention further, this time focusing on chapter 4 of the Green Paper, indicatively entitled 'Strengthening marriage'. Using recent empirical research on mothers' views on marriage and cohabitation, we find further evidence of the 'rationality mistake', where the government has misunderstood the ways in which people make decisions about partnering and hence misplaces the role of family law. We conclude that supportive and flexible legislative frameworks are needed that recognize the varying ways in which people take moral economic decisions.     

政府信息公开立法的现实基础和模式选择

政府信息公开的程度,是衡量一个国家和地区社会发展与政治文明的重要标志。政府信息公开立法是政府信息公开的重要保证。我国颁布实施了《政府信息公开条例》,为政府信息公开及其立法奠定了坚实的基础。但在实践中,政府信息公开还存在一些问题,面临实际困难。国家立法规范政府信息公开是各国通例,由全国人大以及地方各级人大依法制定＂政府信息公开法＂势在必行。借鉴国外中央集中立法、行政程序法典和地方先行立法等立法,立足我国现实国情及现行立法体制,地方先行立法模式是相对适合我国政府信息公开立法的可行选择。     

Judicial Activism in the Name of the Nation: Reneging on the Integration of Immigrants in Greece

Why do courts sometimes decide to liberalize migrants’ rights, while at others restricting such rights, even contrary to the policies of elected governments? This article addresses this question in the context of Greece. It explores the causes and consequences of judicial decision making in a major decision of the Council of State that suspended the most important government reform of 2010, promoting the integration of third‐country nationals. Drawing on judicial politics scholarship, it argues that the ideological and political preferences of key judges were an important influence on the first Council of State decision considered here. However, in the final decision, intra‐court dynamics and the judges’ consideration of external political constraints influenced the court's reasoning, leading to a more moderate outcome, with important consequences for the relaunching of policy reform.     

行政诉讼构建和谐社会的功能与行政审判的平衡原则

一、行政诉讼构建和谐社会的功能 行政诉讼具有救济功能、监督功能和解决行政争议、构建和谐社会的功能。对于行政诉讼的救济功能和监督功能，在《行政诉讼法》已制定20年后的今天，人们已达成了比较广泛的共识。但是对于行政诉讼是否有利于改进“官”“民”关系，消除老百姓与政府机关的矛盾和冲突，保障社会稳定，即行政诉讼是否具有构建和谐社会的功能，有不少人，特别是少数政府机关及其领导人，对之却持怀疑态度。     

The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union1

Abstract: Our aim in this article is to consider whether the Union's deliberation over and decision‐making on constitutional norms, can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution‐making might contribute to rectify the Union's democratic deficit. To do so we first develop a thin model of constitution‐making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution‐making process will look from a deliberative democratic perspective. Second, we distil out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution‐making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution‐making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution‐making. It carried further the democratization of constitution‐making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative‐democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic constitution. The Constitutional Treaty can however lay the foundations for We the European people to speak.     

证明标准建构的乌托邦

如何建构一个科学判断诉讼中当事人证明是否成立的标准 ,一直是人们所企望的。但基于标准的客观化、具体化的要求 ,要求获得一种抽象的、又依赖于法官主观认识的证明标准是不可能的 ,这种标准的建构只能是一种“乌托邦”式的空想。证明度的判定 ,只能是在某种理念和原则的指导下 ,依靠法官的良心和知识 ,根据案件的具体情况来把握。     

A three-year comparative longitudinal study of a school-based social work family service to reduce truancy,delinquency and school exclusions

New Labour is keen to use legislation to encourage what are seen as desirable family practices, and to discourage other, less-favoured, forms. What this means in policy terms has now been codified in its 1998 Green Paper, Supporting Families . In this paper, we examine the validity of this enterprise in terms of its underlying assumptions about social behaviour and economic decision making. We argue that the government implicitly assumes a universal model of 'rational economic man' and his close relative the 'rational legal subject', whereby people take individualistic, cost-benefit type decisions about how to maximize their own personal gain. Change the financial structure of costs and benefits, and the legal structure of rights and duties, in the appropriate way and people will modify their social behaviour in the desired direction. However, recent research suggests that people do not act like rational economic man in making decisions about their moral economy. Legislation based on this assumption might then be ineffectual and the proposals in Supporting Families seem to be one example. This is what we have labelled the 'rationality mistake'. In Part I of this work, we focus on the financial proposals in the Green Paper and on the New Deal for Lone Parents in particular. We then go on to counterpose this with the results of recent empirical work on how and why people actually do make family decisions. In Part II, to be published in the next issue, we focus on chapter four of Supporting Families , on strengthening marriage, and again compare New Labour's proposals with recent empirical work.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

The Tension Between State Interests and Municipal Zoning Rights in the Realm of Fracking Regulations

This article examines whether local municipalities should have the capability to exercise their home rule authority to ban fracking within their jurisdiction, or whether state law should preempt such acts. The Court of Appeals of New York has found that individual municipalities do have the authority to ban fracking, while the Supreme Court of Colorado recently upheld a district court decision that held that the state's Oil and Gas Conservation Act preempted a town's ability to declare an outright ban. These divergent positions could lead to interesting legal battles as natural gas continues to play a larger role in energy portfolios, while public health concerns grow.     

Too Much, Too Late: The Advocacy Act in Ontario

This paper examines the concept of government‐based social advocacy on behalf of vulnerable people in the community. It uses as a case example the Ontario Advocacy Act, a statute that was surrounded by controversy through its short life. The more general question raised is whether the ideas of government‐based advocacy are fundamentally conceptually untenable, or whether the fault lay with the specifics of the act and its implementation. As governments globally cut back on social supports for vulnerable people, the need for advocacy and support are self‐evident. This paper explores the broader viability of this one, specific type of response.