社会组织退出机制研究

中国社会组织的法定类型包括社会团体、民办非企业单位和基金会,注销、撤销和取缔是社会组织退出的三种方式。社会组织管理机关通过不定期的大规模的清理整顿,将不符合政策的社会组织淘汰出局,有违社会治理常态。美国、英国、德国和日本社会组织退出制度各有特色,对中国具有借鉴意义。同时,《公司法》和《企业破产法》关于公司解散和清算的制度经验,也为社会组织的退出机制提供了参考。健全社会组织退出机制需要:(一)贯彻自愿性公益的理念,形成以自愿为主、强制为辅的社会组织退出机制;(二)降低社会组织准入门槛,营造宽进宽出的法律环境;(三)建立社会组织评估与预警机制;(四)明确规定社会组织退出时的相关法律责任及剩余财产的处置办法。     

Insularity and Law: Diversity and Changeability of Islands’ Statuses—The Example of French Outermost Regions in French and EU Law Systems

This article deals with the interactions between national and European legal corpuses about insular territories. French outermost regions (ORs) were first called “départements d’outre-mer” (overseas departments) at the dawn of the French Fourth Republic; they are distinct from other overseas entities. This denomination is used again in the initial EEC treaty in which French overseas departments and overseas countries and territories (OCTs) are distinct. Together with Spanish and Portuguese outermost regions, French overseas departments manage to change EU law in favour of ORs even if the legal differentiation has limits. Moreover, some recent amendments to the French Constitution allow for status variations and even mutations, which can also be found nowadays in EU law.

     

The Standardisation of Tort Damages

This article explores the nature, scope, rationale and merits of the standardisation of compensatory damages in tort law, ie the fact of giving the claimant not the value (subject to ordinary limiting principles) of his own loss, but that of the loss which an ordinary claimant placed in the same circumstances would have suffered. Standardisation happens in respect of pecuniary and non‐pecuniary losses, direct and consequential losses, and also normative losses. Its two main spurs are either that the orthodox award would not give the desired result—typically ‘too little’ damages—or that it runs into evidentiary difficulties, which the award of a typical sum overrides. While epistemic standardisation (which is not strictly standardisation) might be acceptable, the avowed granting of compensatory damages which do not aim to correspond to the claimant's own loss should be resisted, and is in any event impossible because consequential losses can never be meaningfully standardised.     

The Nature of Legal Philosophy

Abstract. Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does the law consist, and how are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

Atypical Accommodations for Employees with Psychiatric Disabilities

People with psychiatric disabilities often need atypical accommodations to participate in today's workforce. Some of these accommodations, including structural and social changes in the workplace, can address biases against people with psychiatric disabilities, while others ameliorate deficits that may affect performance or interaction with others. Many courts have denied requests for such accommodations based on employers' assumptions about performance or the direct threats purportedly posed by people with psychiatric disabilities. By challenging these assumptions, which can be influenced by stigma and stereotypes, and by enforcing an employer's duty to interact regarding potential accommodations, employees with psychiatric disabilities could benefit from structural and social accommodations. Courts should consider social science research in determining which nontraditional accommodations may be reasonable and whether the employer can establish that they impose any undue hardship. Such consideration will expand opportunities for people with psychiatric disabilities in the workplace without unduly interfering with employers' interests.     

Mergers and acquisitions: director and consultant liability exposure

Corporate directors and their consultants must make decisions in an uncertain and changing health care environment. The losses each may face as a result of an incomplete analysis of the true value of the entities involved in mergers or acquisitions may extend beyond the failure of the transaction to the creation of personal liability as well. Accordingly, objective, careful, detailed, and fair decision-making based upon adequate information is more critical than ever for directors if they are to be able to take advantage of the business judgment rule, and also for consultants to avoid their own liability when transactions fail to deliver the values they have estimated.     

Say cheese! Privacy and facial recognition

The popular social networking site, Facebook, recently launched a facial recognition tool to help users tag photographs they uploaded to Facebook. This generated significant controversy, arising as much as anything, from the company’s failure to adequately inform users of this new service and to explain how the technology works.The incident illustrates the sensitivity of facial recognition technology and the potential conflict with data privacy laws. However, facial recognition has been around for some time and is used by businesses and public organisations for a variety of purposes – primarily in relation to law enforcement, border control, photo editing and social networking. There are also indications that the technology could be used by commercial entities for marketing purposes in the future.This article considers the technology, its practical applications and the manner in which European data protection laws regulate its use. In particular, how much control should we have over our own image? What uses of this technology are, and are not, acceptable? Ultimately, does European data protection law provide an adequate framework for this technology? Is it a framework which protects the privacy of individuals without unduly constraining the development of innovative and beneficial applications and business models?     

Rolling the Dice: How Many Occurrences Have Occurred?

The insurance litigation that followed from the World Trade Center tragedy has produced two decisions. The two decisions are diametrically opposed. First, the court found that for those insurance policies that contained a definition of the policy term “occurrence,” the collapse of the two buildings constituted a single occurrence. SR International Business Insurance Co., Ltd. v. World Trade Center Properties LLC, et al., 222 F. Supp. 2d 385 (S.D.N.Y. 2002), aff'd, World Trade Center Properties, LLC, et al. v. Hartford Fire Insurance Co., et al., 345 F.3d 154 (2d Cir. 2003). Then, after a trial involving those policies that did not define the term “occurrence,” the jury held that the collapse of the two buildings constituted two occurrences. This incongruous result demonstrates two truths. First, when the insurance industry wants to, it can define the term ‘occurrence’ in a totally unambiguous manner:

Occurrence shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.

See WilProp form insurance policy for the World Trade Center, cited at 345 F.3d at 160.     

民国帮会恐怖活动的历史思考

民国社会是一个广大的复杂实体,在这个实体中,同时存在主流社会与非主流社会,制度性社会群体与非制度性社会群体,它们相互联系,相互作用,相互制约,影响了历史进程的发展。帮会作为一个非主流社会现象,属于非制度社会群体．从民国帮会的演变与作用以及恐怖活动,分析民国时期帮会恐怖活动产生与演变的特点及其规律,目的就是希望透过历史认清现实,充分认识当今恐怖活动产生的政治与社会基础,对完善现代中国反恐怖法律制度有积极意义。     

An Economic Justification for Open Access to Essential Medicine Patents in Developing Countries

This paper offers an economic rationale for compulsory licensing of needed medicines in developing countries. The patent system is based on a trade-off between the "deadweight losses" caused by market power and the incentive to innovate created by increased profits from monopoly pricing during the period of the patent. However, markets for essential medicines under patent in developing countries with high income inequality are characterized by highly convex demand curves, producing large deadweight losses relative to potential profits when monopoly firms exercise profit-maximizing pricing strategies. As a result, these markets are systematically ill-suited to exclusive marketing rights, a problem which can be corrected through compulsory licensing. Open licenses that permit any qualified firm to supply the market on the same terms, such as may be available under licenses of right or essential facility legal standards, can be used to mitigate the negative effects of government-granted patents, thereby increasing overall social welfare.     

Ethnic Minorities, Social Integration and Crime

This article first discusses various dimensions of the social integration of minorities into society. The Netherlands is taken as an example, although research from other countries (such as the US and Sweden) is also taken into consideration. Useful concepts in this regard include the level to which these groups have social, informative and cultural capital that can help them to integrate into the dominant society. The second part considers the theoretical links between integration and criminal behaviour. The author assumes that the fundamental causal processes that lead to the development of criminality and other negative behaviour are independent of country of origin, ethnic group or the country of residence. In other words – that these processes, as they emerge in social control theory, have a universal character. In the second place, she assumes that differences in crime between ethnic groups are linked to group differences in socio-economic integration in the host country and in culture-related variables. Furthermore, there are also differences in the criminality of allochtonous youth within ethnic groups. These are similarly assumed to be linked to differences in commitment to social institutions such as family and school and to differences in accepting specific Western norms and values.     

How Race,Sex, and Age Frame the Use of Authority by Local Government Officials

Thanks to the civil rights movement, women and racial and ethnic minorities increasingly hold positions of public authority—but they experience and exercise this authority differently from white men. Based on 162 narratives collected from 49 US local government officials (city administrators and police), I find that women, minorities, and younger officials in positions of authority face a paradox of rules. Because they have lower social status with the public and within their organizations, they must rely on formal and explicit rules as a key basis for their authority, but such reliance causes their very authority to be questioned. Social status based on implicit assumptions about social identities, including race or ethnicity, sex, and age, originates outside of organizations and has effects society wide. This study shows that social status continues to permeate US local government organizations in both subtle and explicit ways, even in bureaucratic settings that are formally committed to merit and professional norms.     

Governing international freshwater resources: an analysis of treaty design

International rivers create complex relationships between their riparian states, which can contribute to economic, political, and social losses. Treaties provide a means for states to coordinate their actions in managing international river disputes to minimize these losses. However, there is little knowledge about treaty content and the factors influencing treaty design. We test whether a relationship exists between the challenges of negotiating, complying, and distributing the gains in bilateral, multilateral, and basin-wide negotiation contexts and the depth of cooperation along with the degree of institutionalization. While the great challenges confronting multilateral or basin-wide negotiations can produce treaties that focus on joint gains and shallow cooperation to secure the signature of riparians, we find that they can also provide opportunities for deeper, more behavior-altering, cooperation. To manage the difficulties of maintaining multilateral cooperation, we find a higher degree of institutionalization. We also find that bilateral negotiations provide states with opportunities for deeper cooperation, but a lower degree of institutionalization.     

“To not hate”: reconciliation among victims of violence and participants of the Greensboro Truth and Reconciliation Commission

The Greensboro Truth and Reconciliation Commission (GTRC) was an intervention promoting reconciliation among the victims and community affected by the 1979 Greensboro Massacre in North Carolina. An exploratory qualitative research design was used, in which in‐depth, open‐ended interviews were conducted with victims of the Greensboro Massacre who subsequently participated in the GTRC (n = 17). Findings revealed a typology of reconciliation that includes cognitive–affective, behavioral and social reconciliation. Respondents displayed different orientations in how they prioritized reconciliation with the twin goals of seeking truth and justice. The GTRC did contribute to interpersonal reconciliation, and can be a useful model of communities working to recover from violence. The cognitive–affective, behavioral and social typology of reconciliation can be used to assess other interventions aimed at promoting reconciliation. Individuals’ personal orientations towards reconciliation can also be used to explain different reactions among people to restorative justice efforts.     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.     

Benefits and burdens: Does it really matterWhat we allocate?

There is growing, evidence that allocation decisions concerning burdens and benefits are not processed equivalently. This paper suggests three dimensions on which information processing for resource allocations differs: status quo effects (individuals react more strongly to losses in status quo than to gains), resource valence effects (individuals react more strongly to resource allocations involving burdens than those involving benefits), and blame effects (individuals react more strongly to resource allocation decisions in which they exercise choice). Results of an empirical study confirm significant differences in the information processing of burdens and benefits, and also confirm the importance of psychological distance in the reactions of individuals to burdens and benefits allocations.For there is nothing either good or bad but thinking makes it so.-Hamlet (William Shakespeare)     

Don't Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors

Access-to-information statutes are designed to empower the public and the media to scrutinize the government. In approximately three dozen cases decided since 1975, however, government entities used those statutes to sue citizens and media outlets that requested access to government information. The government lawsuits sought declaratory judgments as to the government's legal obligations under state open meetings and public records laws. This article analyzes the government lawsuits by exploring the social architecture they create. This social architecture is based on the idea that law not only settles individual disputes, but also defines power relationships among groups in society. The article suggests that government lawsuits against access requestors turn access law on its head and deprive citizens of the power over government granted to them by access statutes.