Who Is a Worker? Partisanship,the National Labor Relations Board,and the Social Content of Employment

In opinions addressing whether graduate students, medical residents, and disabled workers in nonstandard work arrangements are employees under the National Labor Relations Act, I analyze partisan differences in how National Labor Relations Board members, under the previous two US presidents, confronted the contradictory permeation of wage‐labor into relatively noncommodified relationships. I argue that Republicans mediated the contradictions by interpreting indicia of employer property rights as status authority. They constructed employment as a contractual relationship consummated through exchange relations and demarcated a nonmarket social sphere in which to locate the relationships before them. This construction suppressed the class dimension of employment and the connection between relations of production and relations in production ( Burawoy 1979 ). Democrats mediated the contradictions by recognizing them in part and arguing that the workers were engaged in commodity production. They proposed the Act as a means for workers to negotiate “differentiated ties” ( Zelizer 2005 ) in nonstandard employment.     

The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context

This article argues that environmental regimes entailing considerable administrative discretion are now serving to contextualise and partly to constitute property rights in English law. In particular, rights to use land are ‘democratised’ to varying degrees through the administration of environmental regulation, and are adapted to land‐use problems on an evolving basis. In return, property rights affect environmental regulation, through legal protections for property interests, although the nature of the discretion exercised within environmental regimes seems to determine the kind and extent of this symbiotic influence. As a result, environmental law challenges property scholars to reflect on the impact of administrative decision‐making on property rights, conceptually, doctrinally and in terms of its legitimacy. At the same time, environmental lawyers need to take seriously the nature and legal treatment of property rights in the application and analysis of modern environmental law.     

El Título en la Mano: The Impact of Titling Programs on Low‐Income Housing in Texas Colonias

This article analyzes the impact of The Community Resources Group Receivership Program undertaken from 1998 to 2002 that provided clean property titles to residents in several informal housing colonias (subdivisions) in South Texas. Survey data were gathered from 260 low‐income households comprising two populations: those who had secure title from the outset, and those who were beneficiaries of the land titling program. Focus group interviews were conducted to explore how the beneficiaries construct the meaning of ownership before and after title “regularization.” Formal titling consolidates understandings of absolute property relations in comparison with de facto rights born of use (legal or not), which strengthens people's sense of self‐esteem and potential for political involvement. We found that, contrary to conventional wisdom, title provision per se appears to have little direct impact either upon home improvement or upon residents' receiving enhanced access to credit and financial services. We also found evidence that informality and illegality is likely to reemerge as owners die intestate, and as they revert to informal land market property transfers.     

‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies

Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform.     

新型农业经营体系下农地产权结构的法律逻辑

新型农业经营体系的构建以厘清农地产权的结构为前提。在我国实行土地公有制不变的前提下,农地产权的结构以集体土地所有权为基础。在新型农业经营体系中对农地的利用关系在法律上应当表达为物权关系,以达到"稳定农村土地承包关系并保持长久不变"的目标,主流学说所谓土地承包经营权的二元化构造即应破除。经济学界提出的以土地所有权、土地承包权、土地经营权"三权分离"学说为基础构建农地产权的观点,曲解了稳定土地承包关系与土地承包经营权流转之间的关系,不符合他物权设立的基本法理,无法在法律上得以表达,也与下一步农地制度改革的方向相悖。如果农地的流转仅仅具有债法上的效果,或产生移转物权的效果,则方式自由;如果农地的流转具有创设物权的效果,则方式强制。实定法上就农地转让的条件限制缺乏正当性,应予修正。     

<Emphasis Type="Italic">It’s Right,It Fits,We Debated,We Decided,I Agree,It’s Ours,and It Works</Emphasis>: The Gathering Confluence of Human Rights Legitimacy

How should we understand human rights and why might we respect them? The current literature – both philosophical and historical – presents a barrage of conflicting accounts, including moral, functional, deliberative, legal, consensual, communitarian and pragmatic approaches. I argue that each approach captures a unique, common-sense – and, in principle, compatible – insight into why human rights warrant respect. Acknowledging this compatibility illuminates the myriad different avenues for legitimacy human rights enjoy, and provides a historical window into explaining how human rights rose to become the international community’s ethical lingua franca. The depth and spread of convergence on human rights proved possible precisely because myriad people the world over found a wealth of disparate reasons for rallying under its banner. But even as human rights enjoy seven distinct sources of legitimacy, I argue that they are thereby opened for normative challenge on seven distinct fronts.     

承包权与经营权分置的法构造

承包权与经营权分置,建立所有权、承包权及经营权“三权分置”的农地权利体系,是中国农地权利制度的既定政策选择。这种新型农地权利体系既能承载“平均地权”的功能负载,又能实现农地的集约高效利用,兼顾了农地的社会保障功能和财产功能,为建立财产型的农地权利制度、发挥农地的融资功能提供了制度基础。我国现行物权法关于用益物权客体范围的界定过于狭窄和僵硬,阻碍了对物的多维利用。依循多层权利客体的法理,经营权乃是土地承包经营权人设定的、以土地承包经营权为标的的权利用益物权,其与土地承包经营权属于不同层次客体上存在的用益物权,可以同时成立而并不冲突。通过认可权利用益物权,承包权与经营权分置的制度设计完全可为用益物权体系所容纳。以设定经营权这一方式行使和实现土地承包经营权,将导致现行农地使用权流转方式类型的结构性整合以及农地融资方式、农地使用权继承的结构性变动。     

从土地所有制的角度解读中国古代官僚制的经济基础——一项基于新制度经济学的分析

新制度经济学的产权理论认为,产权具有残缺性和可分割性的特征.运用产权理论对中国古代土地制度进行分析可以发现,中国古代帝国社会中国家（君主）掌握的是土地产权结构中的所有权,社会成员拥有的是土地产权结构中的占有权和使用权,由此形成的一种具有高度残缺性特征的土地产权制度形态,阻碍了清晰的土地私有观念和土地私有制度的形成.因此,中国古代官僚制最基本的经济基础是全国范围内高度集中的土地所有权,而政治权力与土地所有权在国家层面上的高度统一使得君主成为一国之内最大的地主,官僚制体系主要是作为君主王权的代理者而存在,而能否控制官僚群体对社会的提取限度则成为维系帝国王朝政权存续的基本前提.     

Two Properties, One Land: Law and Space in Nineteenth-Century New Zealand

If we use the word land to refer to the physical substance, and reserve the word property for the intellectual apparatus that organizes rights to use land, we can say that in colonial New Zealand, the British and the Maori overlaid two dissimilar systems of property on the same land. That difference in legal thought structured each side's perception of what the other was doing, in ways that illustrate unusually clearly the power of law to organize our aware' ness of phenomena before they reach the level of consciousness. Over the course of the nineteenth century, as the balance of power gradually swung to the side of the British, they were largely able to impose their property system on the Maori. The centrality of property within the thought of both peoples, however, meant that the transformation of Maori into English property rights involved much more than land. Religious belief, engagement with the market economy, political organization–all were bound up in the systems by which both peoples organized property rights in land. To anglicize the Maori property system was to revolutionize Maori life.     

Controlling Consensual Sex Among Prisoners

Despite recent legal advances for LGBT citizens, including the Supreme Court's recognition of a constitutional right to engage in private, consensual, same‐sex sex, prisons continue to regulate sex in much the same way they have been doing since the nineteenth century. Nationwide, prisons bar consensual sex among prisoners, and those who violate this policy face severe punishment, including administrative segregation. Interviews with prison officials from twenty‐three states uncover beliefs linking consensual sex with violence that places the overall security of the prison at risk. While supporting LGBT rights and the decriminalization of same‐sex sex in society, officials insist that prisons are not suited for similar change. This article explains why prison officials have been so committed to this policy and argues that the time has come to reconsider prison regulation of consensual sex.     

Intersectional Coalitions: The Paradoxes of Rights‐Based Movement Building in LGBTQ and Immigrant Communities

Over the past decade, inter‐ and intra‐movement coalitions composed of organizations within the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) and immigrant rights movements have formed at the local level. These coalitions speak to a massive organizing effort that has achieved some rights campaign successes. However, coalition unity that culminated in “wins” like marriage equality came at a cost. While both movements expanded and unified, they simultaneously ossified around goals that matter to the most privileged segments of their respective communities. The result is a paradox: coalitions do sometimes form within and across movements, promote enduring unity across seemingly divergent movements, and facilitate rights campaign “wins.” However, coalitions simultaneously reinforce hierarchical exclusions through the continued marginalization of issues that uproot conventional power dynamics, like police violence, economic inequality, and gender justice. This essay argues that the construction of a common “civil rights past” identity within coalitions can help to explain this paradox. The development of this collective identity expands movements, occasionally thwarting the power dynamics responsible for the centering of the interests of the most privileged constituencies within social movements. However, the episodic nature of rights‐based campaigns simultaneously contains and undermines the formation of this collective identity, reinforcing movement divisions based on race, gender, and class.     

空间权:一种新型的财产权利

空间权是一种新型的财产权利,空间权可以与建设用地使用权相分离,成为一项独立的物权.当土地所有权与建设用地使用权发生分离之后,并不意味着空间权完全归属于建设用地使用权的内容,土地所有权人也仍然在一定范围内享有对空间利用的权利.空间权归建设用地使用权支配的范围是有限的,建设用地使用权人只能在规定的范围内进行支配,而超出的支配范围由所有权人享有,并由所有权人进行支配.因而,对土地上下的空间,只要未予明确的,剩余权利都应归所有权人而不是使用权人享有.     

土地分层利用中的法律问题研究

《物权法》第136条规定:“建设用地使用权可以在土地的地表、地上、地下分别设立.新设立的建设用地使用权,不得损害已设立的用益物权.”由此创造出了建设用地使用权分层出让制度.如何保证该制度顺利实施,涉及到诸多法律问题.通过对地下、地表、地上空间的范围的界定、空间建设用地使用权的设定、登记公示制度构建以及土地立体空间的不同用益物权之间的权利冲突如何协调等问题的全面研究,试图构筑科学的土地分层利用制度,使得我国土地的空间利用成为可能.     

Food Security and Agri‐Foreign Direct Investment in Weak States: Finding the Governance Gap to Avoid ‘Land Grab’

Food security is important. A rising world population coupled with climate change creates growing pressure on global world food supplies. States alleviate this pressure domestically by attracting agri‐foreign direct investment (agri‐FDI). This is a high‐risk strategy for weak states: the state may gain valuable foreign currency, technology and debt‐free growth; but equally, investors may fail to deliver on their commitments and exploit weak domestic legal infrastructure to ‘grab’ large areas of prime agricultural land, leaving only marginal land for domestic production. A net loss to local food security and to the national economy results. This is problematic because the state must continue to guarantee its citizens' right to food and property. Agri‐FDI needs close regulation to maximise its benefit. This article maps the multilevel system of governance covering agri‐FDI. We show how this system creates asymmetric rights in favour of the investor to the detriment of the host state's food security and how these problems might be alleviated.     

RACIAL DISCRIMINATION,RACIAL SOCIALIZATION,AND CRIME OVER TIME: A SOCIAL SCHEMATIC THEORY MODEL

Recent studies evince that interpersonal racial discrimination (IRD) increases the risk of crime among African Americans and familial racial socialization fosters resilience to discrimination's criminogenic effects. Yet, studies have focused on the short‐term effects of IRD and racial socialization largely among adolescents. In this study, we seek to advance knowledge by elucidating how racialized experiences—in interactions and socialization—influence crime for African Americans over time. Elaborating Simons and Burt's (2011) social schematic theory, we trace the effects of childhood IRD and familial racial socialization on adult offending through cognitive and social pathways and their interplay. We test this life‐course SST model using data from the FACHS, a multisite study of Black youth and their families from ages 10 to 25. Consistent with the model, analyses reveal that the criminogenic consequences of childhood IRD are mediated cognitively by a criminogenic knowledge structure and socially through the nature of social relationships in concert with ongoing offending and discrimination experiences. Specifically, by increasing criminogenic cognitive schemas, IRD decreases embeddedness in supportive romantic, educational, and employment relations, which influence social schemas and later crime. Consonant with expectations, the findings also indicate that racial socialization provides enduring resilience by both compensating for and buffering discrimination's criminogenic effects.     

征地补偿与农民财产权益保护问题研究

通过借鉴国外征收补偿与财产权保护法制的先进经验,结合我国征收补偿与财产权保护法制历史与现状,在学术界已有研究成果的基础上,针对我国征地补偿实践中存在的“有法不依”和“无法可依”现象与我国现行征地补偿与农民财产权益保护法律制度中存在的主要问题,为改革我国征地补偿与农民财产权益保护法律制度提供对策建议：坚持农民财产权益保护、征地和补偿三位一体、从保护农民财产权益角度改革征地补偿法律制度;从实体法与程序法上建构对农民财产权益的制度性保护与个别性保护,以改变征地实践中“有法不依”与“无法可依”现象、确保农民财产权益的存续保护与价值保护。     

Proprietary Estoppel and Responsibility for Omissions

The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal‐individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right‐holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honoré termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.     

Returning to the Past: The South Australian Colonisation Commission,the Colonial Office and Aboriginal Title

In the closing decades of the twentieth century many scholars sought to both address and redress the ways in which indigenous people's rights in land had been treated historically by colonisers in Anglophone settler societies. More recently, this work has been criticised by a new generation of legal historians who have sought to delineate more carefully the role that the law actually played in the treatment of aboriginal title in the past. In keeping with the latter approach, this article seeks to recover the manner in which the indigenous people's interests in land were treated in the British colony of South Australia at the time it was founded in the early-to-mid nineteenth century. It emphasises the manner in which the colonisers, the South Australian Colonisation Commission, rather than the British Colonial Office, deployed a range of legal arguments, especially in the context of political negotiations between these two parties. It concludes that the imperial government's treatment of indigenous interests in land was primarily determined by its perception of the relationships of power on the ground between the colonial state, the settlers and the Aboriginal people rather than by its application of any particular legal principle or norm.     

Urban crime rates and the changing face of immigration: Evidence across four decades

Research has shown little support for the enduring proposition that increases in immigration are associated with increases in crime. Although classical criminological and neoclassical economic theories would predict immigration to increase crime, most empirical research shows quite the opposite. We investigate the immigration-crime relationship among metropolitan areas over a 40 year period from 1970 to 2010. Our goal is to describe the ongoing and changing association between immigration and a broad range of violent and property crimes. Our results indicate that immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime throughout the time period.     

The Relative Resilience of Property: First Possession and Order Without Law in East Timor

Much of the recent literature on customary property relations in sub‐Saharan Africa has highlighted underlying characteristics of negotiability and indeterminacy. Custom is prone to reinvention as resource claimants manipulate customary references across multiple forums for property legitimation and authority. This article focuses on the resilience of customary property relations in East Timor. Based on a study of customary authority in the village of Babulo, we conclude that traditional Timorese narratives of first possession, where land authority is claimed by groups that trace descent to a mythic first settler, have acted as adaptive and resilient focal points for the reproduction of customary property relations in historical circumstances of war, colonization, and occupation. While a finding of customary resilience is not new to postcolonial contexts, the relative novelty of our study lies in its structured explanation for resilience in circumstances of war and displacement, based on the social ordering capacity of first possession principles themselves. This explanation, which derives from focal point theories for cooperative property relations, also takes into account a number of limits on the ordering capacity of first possession principles, which support a conclusion of relative or constrained resilience, particularly in terms of contested interpretations of possessory authority in contemporary East Timor.