Common law environmentalism

The necessity to control environmental externalities is almost invariably given as justification for command-and-control regulation and other forms of state intervention in related markets. When even mentioned, common law remedies that protected environmental rights for centuries are quickly dismissed as either being unworkable or ineffective. A review of the common law experience indicates that the rule of law can be effective in protecting environmental rights. Indeed, it is quite possible that common law was too effective, which led to special interest demand for statute law. The rule of politics may be more attractive to rent seekers than the rule of law and markets.     

实质解释法律:通往理想法治之路

在建设法治国家的进程中，既要反对法律教条主义，也要反对法律虚无主义。而在目前，反对教条主义地解释法律也许具有更重要的意义。要反对法律教条主义．就必须坚持实质的法律解释观．这是通往理想法治的必由之路。     

Political Scepticism: A Reply to the Critics

In a previous article in this journal ( Bufacchi, 2001 ) I argued that political scepticism is a defining characteristic of liberal democracy. I have been criticised for inadequately distinguishing political scepticism from fallibilism (Festenstein, 2001) and for failing to appreciate the role of moral autonomy within liberal democracy (Hyland, this issue). In this article I respond to my critics, first by clarifying the difference between political scepticism and fallibilism, and secondly by suggesting that political scepticism is a necessary condition for moral autonomy.     

Europe and the Common

Significant attention has been given to the necessary conditions for a viable and legitimate European polity. Drawing on traditions in political philosophy, a central strand of this debate has concerned what must be common to a set of people such that they may be ruled through the same institutions, with various types of collective bond proposed as possible bases for political community. The argument of this article is that many such approaches, which conceive a bond in terms of shared interests, cultural attributes or shared values and principles, are liable either to underplay or to overplay how much the citizens of a polity must have in common, tending either to empty public life of the pursuit of shared ends or conversely to downgrade the importance of adversarialism. Both may be seen as depoliticising moves. The article goes on to explore how a more explicitly political bond, based on the appraisal of political problems, might be conceived for a European polity.     

Corporations and the law: Historical lessons for contemporary practice

Abstract

This article examines the role of the courts, especially the Supreme Court, in facilitating the development of a capitalist economy and enhancing corporate power. Theoretically, I employ an approach which treats the law as a constitutive process. I first survey key legal developments in the nineteenth century through which the courts fostered and nurtured the development of a capitalist economy. Then I analyze the post‐New Deal era, examining the transformation of economic doctrines by the Supreme Court to legitimate a newly emergent corporate‐administrative state. In the last part of the article I use this historical analysis to address contemporary issues for the Left of how to bring about fundamental change in the United States. I discuss the degree to which the law can be used as a means of progressive reform and how strategic legal choices are related to the debate about social movement, discourse, class‐based, and political strategies for change.     

Digital disobedience and the law

Digital disobedience can be defined as politically motivated online lawbreaking. It includes Distributed Denial of Service actions, hacktivism, digitally based leaking (for example, Anonymous, Wikileaks), and whistleblowing (along the lines pursued by Chelsea Manning and Edward Snowden). Given its growing political importance, the phenomenon requires careful theoretical attention. Against the widespread tendency to criminalize digital disobedience by appealing to conventional notions of the ‘rule of law’, this article argues that some of its proponents are in fact engaging in digital lawbreaking as expressions of their fundamental respect for the rule of law. Although this diagnosis highlights the partial overlap with conventional models of civil disobedience (which oftentimes similarly conceive of politically motivated lawbreaking as necessarily resting on a more fundamental respect for the law), we should hesitate before viewing digital disobedience simply as modernized or digitalized civil disobedience. Digital disobedience includes some political novelties, and traditional views of civil disobedience only get us so far in making sense of those novelties.     

Private sector shrinkage and the growth of industrialized economies: Reply

Further tests and thoughts on the OECD data lead me to conclude that, if anything, my 1986 paper underestimated the magnitude of the inverse relation between economic growth and government size. If one takes the nominal-based measure of government scale, as advised by Saunders, the significance levels, coefficient magnitudes and goodness of fits improve over what I found with my initial investigation. I would suggest that Saunders reconsider his reluctance to believe that the size of the public sector is unrelated to economic growth in OECD countries over this time period.One additional thought appears relevant to the current policy debate concerning budget deficits and economic performance within the major industrialized economies. The empirical work displayed here and in my 1986 paper suggests serious problems associated with the various proposals urging governments to raise taxes and/or ease fiscal policy. Elsewhere, I have suggested that available empirical evidence implies that plans to increase taxes as a way out of budget deficits are plans that carry the potential for raising government spending and possibly future deficits as well. Coupled with the evidence presented here, we should also recognize the potential of tax increases to raise the level of government participation in a country and, accordingly, exert inverse influences on its future economic performance as well. As suggested in my 1986 paper, the empirical evidence may suggest the following irony: While political participants may crave larger and larger non-market resource allocations, their future ability to satisfy that craving may very well be severely constrained by the satisfaction of that same appetite.     

Taking the Measure of Congress: Reply to Chiou and Rothenberg

e-mail: binder{at}gwu.edu Chiou and Rothenberg raise important questions about how tomeasure key concepts in the study of legislative stalemate inthe U.S. Congress. In challenging my choice of measures to capturebicameral differences, Chiou and Rothenberg argue that my findingsare the artifact of measurement error. In this reply, I reviewthe hurdles involved in measuring policy views over time andacross institutions and suggest that the preferred measure ofChiou and Rothenberg falls short for measuring bicameral differences.Second, I assess the extent to which measurement choices affectthe robustness of my findings about the determinants of gridlock.Drawing on new measures and model specifications, I show thatmy results are robust to alternative specifications. I concludewith an assessment of the broader challenges posed by how wemeasure critical concepts in the study of congressional performance.