Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959–2001

Through theoretically informed inquiry into congressional attitudes toward the Constitution and the courts as well as survey research of two modem Congresses, this study considers the prospects and implications of a more salient legislative role in constitutional affairs. By analyzing survey responses from the 86th (1959–61) and 106th (1999–2001) Congresses, and the political context in which these views were formed, this essay explores the legislature's evolving conception of its role and capacities as a constitutional interpreter. Among other findings, Congress demonstrates a persistent and somewhat surprising interest in asserting an independent, distinctive constitutional voice, although it has somewhat conflicted and underdeveloped views about how to achieve this objective. While this essay points to significant barriers to fostering a coherent and forceful congressional presence in constitutional decision making, it also suggests institutional organizations and strategies that may be promising bases for promoting this goal.     

Beyond Therapy: Problem‐Solving Courts and the Deliberative Democratic State

Problem‐solving courts (drug courts, community courts, domestic violence courts, and mental health courts), unlike traditional courts, attempt to get at the root of the individual and social problems that motivate criminal behavior. Theoretical understandings of problem‐solving courts are mostly Foucauldian; proponents argue that these new institutions employ therapeutic techniques that encourage individuals to self‐engineer in ways that subtly increase state power. The Foucauldian approach captures only some elements of problem‐solving courts and does not fully theorize the revolution in justice that these courts present. Problem‐solving courts, domestic violence courts in particular, orient not just around individual change but also around social change and cultural transformation. Combining the Foucauldian idea of a therapeutic state (as developed by James Nolan) with an understanding of the deliberative democratic mechanisms of larger‐scale structural transformation (found in Habermas and others) leads to a more balanced and empirically open orientation to the actual motivations, goals, and achievements of problem‐solving courts.     

The Judicial Transformation of the State: The Case of U.S. Trade Policy, 1974–2004

The recent shift in state policies from Keynesianism to neoliberalism was accompanied by a transformation in state structures. The case of trade liberalization in the United States reveals that this structural transformation is of a judicial nature. In 1974, supporters of free trade successfully shifted authority over the management of protectionist claims from Congress to quasi-judicial bodies in the U.S. executive; in 1994 , they successfully strengthened the dispute settlement mechanisms of the World Trade Organization. This judicial transformation indicates a shift from sites where decisions are made by way of political negotiations to sites where judges preside over legal disputes. In the article, I identify the political origins of these judicial transformations and discuss the factors that make judicial sites more favorable to neoliberal policies than political sites.     

从传统到现代：性法律理念的更新与调整方式的转换

在传统的农业经济社会，性更多地表现为义务、责任和特权，很难形成系统的性权利观念与实践，与此相应，性法律必然以义务为本位。在现代的市场经济社会，物质生活水平的提高促进了人的性需求量的增加，生产和生活方式的更新改变了性行为的个体模式，科学技术的发展拓展了性行为的自主空间。在这样的社会条件下，民众的性权利意识开始崛起和成熟，与此相应性法律应该以权利为本位。面对这样的社会变迁，中国当代的性法律必须实现立法理念的更新与调整方式的转换     

Context and Change: The Evolution of Pioneering Drug Courts in Portland and Las Vegas (1991–1998)

Drug courts in the United States are still relatively young, but they have proliferated dramatically since the first innovation in Miami in 1989. Research focusing on drug courts is now beginning to gain momentum, though it still lags considerably behind the growth of the movement itself. This article describes findings from a first "longitudinal" examination of two of the nation's first and longest operating courts in Portland and Las Vegas, focusing on the dynamic nature of the evolution of the model as adapted in each site. In particular, the research considers the impact of contextual factors – laws, administrative policies, and federal court orders – on the growth of drug court models in each jurisdiction as measured through their screening and enrolling mechanisms over time. The time series analyses suggest that several contextual factors played an important role in shaping these courts and affecting their impact on the target populations and the results they produced. The longitudinal findings illustrate the importance of context in making sense of "normal" evaluation findings and emphasize the dynamic nature of the change process in implementing innovative policy in the criminal courts.     

Between patterns and processes: Measuring labor markets and family strategies in Flanders, 1750–1990

Although the relationship between “internal” household strategies and “external” constraints has received much attention in recent family history, the debate about the conceptualization of “historical time” and the measurement of the micro-macro-linkages is still in its infancy. The aim of this article is two-fold: (a) to emphasize the importance of recurrence in historical time, by tracing three periods of acceleration in the societal changes of the two last centuries, and (b) to test the possibilities of comparative statistics that link micro-patterns and macro-processes. The exercise is applied to two rural regions and one urban area in Flanders.     

The “Production” of Corruption in China's Courts: Judicial Politics and Decision Making in a One‐Party State

Despite its rampant presence, judicial corruption in China has often been regarded as the idiosyncratically deviant behavior of a few black sheep eluding prescribed judicial conduct. This entrenched assumption has both discouraged in‐depth investigation of the phenomenon of judicial corruption and inhibited proper understanding of the functioning of China's courts. This article, based on an empirically grounded examination of the processing of court rulings tainted by corruption, showed that judicial corruption in China is an institutionalized activity systemically inherent in the particular decision‐making mechanism guided by the Chinese Communist Party's instrumental rule‐by‐law ideal. In investigating what has contributed to the institutionalization of judicial corruption, the interplay between law and party politics in China's courts was also examined. The findings, therefore, also shed light on behind‐the‐courtroom judicial activities and on the enduring perplexity of the gap between the law in the book and the law in action.     

The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case‐law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a global assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.     

Lawyers and Politics in France, 1814–1950: The State, the Market, and the Public

Throughout the 19th century, lawyers in France were deeply involved in political action to pursue an overriding goal–to become recognized as spokesmen for the public. This strategy governed their history; it explains their brilliant social ascent and their subsequent slow decline. As long as the conflict between state and civil society raged, lawyers were able to we assets–political mobilization, the power of the word, the esteem enjoyed by law–which had allowed them faithfully to embody public opinion in its struggle to limit state powers. From this embodiment of public ideals they derived independence, prestige, and a dominant position in the state. But when the nature of the political regime ceased to be a bone of contention and when public life became organized around other cleavages, lawyers were gradually deprived of their representative function. This marked the beginning of a social decline that became visible between the two world wars and lasted until the 1950s.     

Muslim Mandarins in Chinese Courts: Dispute Resolution,Islamic Law,and the Secular State in Northwest China

Many sociolegal studies have investigated the relationship between state law and informal law, examining alternative dispute resolution and popular justice as intersections between such types of law. However, such questions have received little attention in East Asian authoritarian states. I use the case of dispute resolution among Chinese Muslim minorities (the Hui) to reexamine the relationship between state law and Islamic law. Based on nineteen months of fieldwork in Northwest China, I argue that the Hui case shows codependence between the types of law. Law is deeply embedded in social relationships between the Hui and the party‐state. An analysis of personalistic relationships shows the ways in which religious and secular authorities access each other, transforming each other's law to augment their own legitimacy, but not without the potential for violence. The China case illuminates dynamics between Muslim communities and states that are prevalent elsewhere in the post‐9/11 period.     

Faith‐Based Programs for Reentry Courts: A Summary of Issues and Recommendations

In 2002, the Bush Administration directed the Department of Justice to include faith‐based organizations in its distribution of funds earmarked for programs targeting the prevention and treatment of juvenile delinquency and substance abuse. Among the initiatives most likely to be affected by this new policy are reentry court programs that endeavor to reintegrate juvenile delinquents into their communities by placing them within local neighborhood‐based programs. However, reentry court personnel and leaders of faith‐based organizations are likely to encounter numerous challenges as they try to establish appropriate programming. In this article, we discuss the current understanding of First Amendment jurisprudence governing the federal funding of faith‐based organizations and summarize key issues identified by a National Council of Juvenile and Family Court Judges' workgroup on faith‐based programming that are necessary for including faith‐based organizations within a reentry court's continuum of care. We also discuss several concerns that reentry court personnel and faith‐based organizations should consider as they seek to maximize the impact of their programs.     

Agreeing to Disagree: Agenda Content and Senate Partisanship, 1981–2004

This article presents evidence that the recent increase in partisanship in Senate roll‐call voting is partly due to changes in the content of the Senate agenda. The analysis draws on an original dataset classifying Senate roll‐call votes from 1981 to 2004 according to substantive issue content. Over the past two decades, the types of issues that were most divisive along partisan lines in earlier periods became progressively more prominent on the Senate roll‐call agenda. Even when one controls for the effects of other electoral and institutional factors, one finds that the shifting agenda notably contributed to the rise in Senate partisanship.     

Governors and “Their” Deputies: New Legislative Principals in Mexico

Many studies on legislatures around the world have not detected a regional voting dimension. Yet governors are often important political figures and can exert strong influence on state politicians. From an analysis of the Mexican legislature, I determine that governors hold important resources that ambitious politicians need in a system with no consecutive reelection. Mexican governors use their power over federal deputies to prod their agents, the caucus leaders, into working for their states' interests on fiscally relevant issues, especially the annual budget. On all other issues, the governors delegate their deputies' votes to the party's legislative leadership.     

Reforming Leasehold: Discursive Events and Outcomes, 1984–2000

This article uses discourse analysis to explore and explain the limits of ongoing efforts to resolve the problems experienced by long leaseholders living in private flats in England and Wales. Attention is focused on the position of leasehold within the three discourses of property law, housing, and housing law, as revealed through the language used in legislation, consultation papers, Law Commission reports, political statements, media representations, and the accounts of leaseholders themselves. The implementation gap between legislative intentions and effects, so often neglected in discussion of housing policy, is explored. The article considers policy and legislation in the light of a metanarrative encompassing all aspects of the multi-occupancy of blocks of flats.