Where Judicial Politics Are Legislative Politics: The French Constitutional Council

Judges on France's ordinary and administrative courts make law and policy by interpreting and applying statutes, but the Constitutional Council is overtly involved in policy‐making. The Council serves as a type of ‘third’ chamber of the French parliament, where it may annul unconstitutional legislation, ‘constitu‐tionalise’ various legal principles, and sometimes even prescribe the precise terms of legislation. This ‘court‐like’ body, thus, plays a significant and growing role in French policy‐making.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Whistleblowing and Compliance in the Judicial Hierarchy

One way that principals can overcome the problem of informational asymmetries in hierarchical organizations is to enable whistleblowing. We evaluate how whistleblowing influences compliance in the judicial hierarchy. We present a formal model in which a potential whistleblower may, at some cost, signal noncompliance by a lower court to a higher court. A key insight of the model is that whistleblowing is most informative when it is rare. While the presence of a whistleblower can increase compliance by lower courts, beyond a certain point blowing the whistle is counterproductive and actually reduces compliance. Moreover, a whistleblower who is a “perfect ally” of the higher court (in terms of preferences) blows the whistle too often. Our model shows an important connection between the frequency of whistleblowing and the effectiveness of whistleblowing as a threat to induce compliance in hierarchical organizations.     

Campaign‐Style Enforcement and Regulatory Compliance

This article examines the recoupling mechanism of campaign‐style enforcement and its effects on environmental regulatory compliance. Drawing on the policy implementation literature and institutional theory, the authors develop a conceptual model of campaign‐style enforcement in which both resource mobilization and power redistribution are theorized to address decoupling problems in regulatory compliance. The two‐pathway recoupling mechanism is evidenced by an empirical investigation of the implementation of China's energy conservation and emission reduction policy as part of that country's 11th Five‐Year Plan. Findings suggest that campaign‐style enforcement can effectively improve regulatory compliance when it addresses the efficiency/legitimacy conflict by providing policy incentives and reorganizing a clear hierarchy of political authority. The article concludes with a discussion of the strengths and limitations of campaign‐style enforcement.     

Coercive Federalism and the Search for Constitutional Limits

This article explores several constitutional bases for questioningthe federal government's use of unfunded mandates and otherforms of coercive intergovernmental regulation. The "anti-coercion"and "anti-commandeering" principles of the Tenth Amendment areproposed as general arguments against these forms of regulation.The constitutional requirement of "uniformity" attached to indirecttaxation, the "anti-discrimination rule" in the area of intergovernmentaltax immunity, and the "equality rule", which stems from theunwritten tradition of maintaining equality among the states,are developed as additional bases for striking down federallaws that distribute mandate burdens disproportionately amongthe states.     

司法行政权的界说及其合理配置

司法行政权是以管理司法行政事务为主、兼容部分司法权性质的行政权,具有复合性、相对独立性、广泛性、服务性等特点。我国司法行政权的合理配置要着力强化审判权的权威,调整完善检察权;统一规范司法裁判的执行权;完善司法行政制度;并逐步实现司法行政与审判、检察等司法业务的适当分离。     

The Uncovered Set and the Limits of Legislative Action

Ivan Jeliazkov Department of Economics, University of California, Irvine,Irvine, CA Itai Sened Department of Political Science, Washington University in St. Louis, St. Louis, MO We present a simulation technique for sorting out the size,shape, and location of the uncovered set to estimate the setof enactable outcomes in "real-world" social choice situations,such as the contemporary Congress. The uncovered set is a well-knownbut underexploited solution concept in the literature on spatialvoting games and collective choice mechanisms. We explain thissolution concept in nontechnical terms, submit some theoreticalobservations to improve our theoretical grasp of it, and providea simulation technique that makes it possible to estimate thisset and thus enable a series of tests of its empirical relevance.     

Metropolitan Governance: Voter Support and State Legislative Prospects

With increased public attention to the problems in both centralcities and suburban areas, the feasibility of metropolitan governanceis being considered again. Myron Orfield's work on regionalcooperation in Minneapolis-St. Paul has suggested that statelegislative action can be used to achieve that outcome. However,state legislators are unlikely to promote regional policiesunless they have some evidence their constituents support them.This article uses election data from California propositionsto test the connection that Orfield asserts between demographiccomposition of an area and voter support for regional issues.The data suggest several shortcomings of his model, includingthat race or ethnicity and the diversity of an area substantiallyaffect the outcome in ways he did not consider.     

宪法实施视域中司法裁判宪法援引的实证分析

全面推进宪法实施采用广义的宪法实施内涵,有利于将宪法基本原则和宪法规范贯彻落实到国家与社会生活的各个领域。司法裁判中的宪法援引是宪法实施在司法领域的具体实践,因此,对宪法援引的实证研究能够获得宪法实施的直观印象。借助于新兴的大数据技术,检索含有宪法援引内容的裁判文书,对其进行统计学处理和分析,形成关于宪法援引案件的系统性认知。在此基础上,运用宪法学原理对宪法援引进行解析,以主体为宪法援引的区分标准,将其分解为当事人宪法援引与法院宪法援引两种不同类型,便于深入考察司法实践中宪法援引的具体方式和实际效果,进一步印证宪法援引在推进宪法全面实施过程中所具有的实践价值。     

Effects of Constitutional and Political Controls on State Expenditures

State governments have employed various statutory and constitutionaldevices to limit government spending. Many of these devicesare intended to increase executive control over expenditures.The research design employed here suggests that such effortsare ineffective or counterproductive. However, this researchindicates that state legislatures controlled by a single partyare more likely than divided legislatures to limit governmentspending and minimize debt. Thus, political and electoral influencesappear to explain state expenditures belter than legal restrictionson the appropriations process. This study adds to the literatureby simultaneously analyzing multiple restraints on state governmentspending and debt.     

State Taxation of Interstate Sales: Enforcement Problems and Prospects

In their search for additional revenues, state governments in recent years have turned greater attention to collection of use taxes. Growth in interstate mail order sales has vastly increased the potential yield from use taxes, but Supreme Court decisions have limited the ability of states to effectively collect the tax. States have attempted to overcome enforcement barriers by joining in interstate use tax compliance compacts, and promoting congressional legislation to overcome constitutional prohibitions.     

Epistemological Limits of the State: Reflections on Popper's Open Society

The ethical theory of Popper's Open Society threatens, against his wishes, to lapse into a form of relativism. This consequence is avoided if a closer parallel than Popper himself allows for is drawn between hs ethical theory and his epistemology. This produces a fallibilistic ethical intuitionism, in which the judgements of the individual are subject to criticism by the judgements of others. From this, however, an epistemological rationale is provided for the autonomy of the individual and moral limits are drawn to the sphere of legitimate action by the state.     

论司法独立之基本内涵及其宪法保障

国际公认的司法独立包括司法权独立、法院独立和法官独立。其中,法官依法独立审判是其核心内涵。我国宪法对司法独立的规定与国际社会有着一定的差距,其中滞后的观念是导致我国司法不能完全独立的首要原因。其实,法官依法独立审判与党的领导、人民代表大会制、民主集中制是一致的。因此,在我国要实现司法独立,应首先修改宪法,确立与国际社会一致的司法独立观念。     

Constitutional Dimensions of State and Local Tax Deductibility

President Reagan's proposal to eliminate the deduction of stateand local taxes for the purpose of assessing federal incometaxes will vastly enlarge the scope of the federal government,unduly burden state and local governments, and greatly harmthe federal system. The essence of the federal idea is thatthere are arenas of government that must not be invaded by othergovernments. Yet the Treasury Department would have us believethat the most fundamental activities of state and local governmentsare in some significant sense paid for by the federal governmentthrough "subsidies" provided by the federal tax code.     

State Debt Limits: How Many Are Enough?

There is a growing concern among state policy makers that unrestrained debt may exceed politically acceptable or financially sustainable levels of debt. Many states have established limits to restrict debt, but many of these limits are circumvented through issuing more complex and specialized bonds. In this article, we focus on the use of debt limits as an instrument to manage a state's debt in context of two key questions: (1) under what circumstances should a state consider multiple debt limits and (2) if multiple limits are established, what factors should be considered in setting such multiple limits. In addressing these issues, we consider the theoretical and conceptual issues associated with setting debt limits, we highlight current state debt limit policies, and discuss factors that appear to be influencing decisions to establish and set multiple limits.     

Medicaid Managed Care for Children with Special Health Care Needs: Examining Legislative and Judicial Constraints on Privatization

Over the past decade, much has been written about the results of reinventing government. Most research has examined the effects of executive or managerial perspectives. Using David Rosenbloom's competing perspectives model, we examine Medicaid managed care programs for children with special health care needs to illustrate the influence of legislative and judicial institutional perspectives on the reinvention movement. Legislative and judicial responses to the reinvention of Medicaid managed care reveal the outer limits of what managed care and related executive reforms can accomplish in a Constitutional system that is based on checks and balances among competing institutional perspectives. Furthermore, relative to Medicaid managed care, legislative and judicial responses conserve public responsibility to society's most vulnerable populations. In the long run, the balance of institutional perspectives and values—not managerial innovation per se—will influence public administration.     

论我国宪法权利限制的实质、困境与对策

尽管享有权利是人类社会生活的一部分,但为了维护公共利益,个人宪法权利还必须受到限制。然而,权利限制的最终目的还是为了保障人的生存与发展,进而实现人的价值。由于诸多原因的影响,我国宪法对公民宪法权利的限制存在着一定的缺陷,不利于公民宪法权利的实际享有。因此,亟需从宪法权利限制的原则、方式和具体条文等方面完善我国宪法权利的限制。