地方性党内法规制度建设的困境与完善进路——基于政治系统论的研究视角

加强地方性党内法规制度建设是完善党内法规制度体系的关键环节,对中国特色社会主义法治建设具有联动性和整体性影响.本文基于对地方性党内法规制度建设的现有研究及其价值内涵的梳理,以政治系统论为研究视角分析地方性党内法规制度建设的当前困境并结合地方实际,从构建需求输入的规范机制、强化内外支持的输入供给、树立地方性党内法规权威、...     

The constitutionality of current legal barriers to telemedicine in the United States: analysis and future directions of its relationship to national and international health care reform

The current health care crisis in the United States compels a consideration of the crucial role that telemedicine could play towards deploying a pragmatic solution. The nation faces rising costs and difficulties in access to and quality of medical services. Telemedicine can potentially help to overcome these challenges, as it can provide new cost-effective and efficient methods of delivering health care across geographic distances. The full benefits and future potential of telemedicine, however, are constrained by overlapping, inconsistent, and inadequate legal and regulatory frameworks, as well as the repertoire of standards imposed by state governments and professional organizations. Proponents of these barriers claim that they are necessary to protect public health and safety, and that the U.S. Constitution gives states exclusive authority over health and safety concerns. This Article argues that such barriers not only fail to advance these public policy goals, but are unconstitutional when they restrict the practice of telemedicine across state and national borders. Furthermore, the interstate and international nature of telemedicine calls for increasing the centralized authority of the federal government; this position is consistent with the U.S. Constitution and other governing principles. Finally, this Article observes that the U.S. experience bears some similarities to that of other nations, and represents a microcosm of the international community's need and struggle to develop a uniform telemedicine regime. Just as with state governments in the U.S., nations are no longer able to view health care as a traditional domestic concern and must consider nontraditional options to resolve the dilemmas of rising costs and discontent in the delivery of health care to their people.     

Relational Legal Consciousness of U.S. Citizenship: Privilege,Responsibility, Guilt,and Love in Latino Mixed‐Status Families

Based on interviews with 100 members of mixed‐status families in Los Angeles, California, this article analyzes how U.S. citizen children practice and understand citizenship in the context of punitive laws targeting their loved ones. Participants' narratives of citizenship as privilege, responsibility, and guilt reveal that despite normative conceptions of citizenship as a universally equal status, citizenship intersects with key social markers to determine the contours and inequalities of substantive citizenship. Specifically, U.S. citizens in mixed‐status families make sense of their juridical category when they navigate unrealistic aspirations from relatives, maintain silence about undocumented family members' legal status, manage their fear of family separation through deportation, and take on financial and logistical responsibilities prematurely to help relatives. In each of these ways, family proves to be a key site for the social and relational production of citizenship.     

党内法规程序的法治向度

党内法规程序是全面从严治党的规范依据,是依规治党、制度治党的必然要求.党内法规程序作为党内法规体系的重要组成部分,自身孕育着法治体系、权利保障与制度规则的法治属性以及确认党内法规适用的具体规则、实现党内法规实施依规依法的"双重价值".党内法规制度效能的发挥以及制度结构的优化,需以法治理性的向度审视党内法规程序法治逻辑延...     

The USPS as an OSP: A Remedy for Users’ Online Privacy Concerns

New digital technologies, and a legal system that has failed to keep pace, are allowing government and the private sector to engage in unparalleled unauthorized surveillance of online personal data contained in emails and in the aggregation of users’ online searches. This article argues that the U.S. Postal Service — compelled to protect communications privacy by its enabling statute, the Fourth Amendment, and other federal laws — should provide email and browser-search engine services to shield users from unauthorized online behavioral marketing and tracking by the private sector and metadata collection by government, and, just as important, give users legal remedies against such abuses. To that end, this article provides a legal analysis and rationale to support the USPS's authority to offer such nontraditional postal services.     

新版《药品管理法》的主要内容与特色研究

经2019年8月修订后的《中华人民共和国药品管理法》的出台是国家药品管理的立法典范。它在完善卫生法律体系的立法架构下,通过采用修订立法方式,界定区分假、劣药品概念,强调信用监管,规范网络售药行为,鼓励科技创新,明确法律责任与处罚,突出法律的回应性立法特征,保障公民健康权利。法律的生命在于实施。应结合社会主义法治理念要求,建议健全药品的配套法规,严格药品监管执法,合理开展普法宣传,加强司法适用,实现"良法善治"的目的。     

Medicare and Medicaid programs; approved information collection requirements and HCFA's claims collection authority--HCFA. Final rule with comment period

This final rule updates our display of control numbers assigned by the Office of Management and Budget (OMB) to approved "collection of information" requirements contained in regulations governing the Medicare and Medicaid programs. In addition, it incorporates a technical change to our regulations to reflect increased agency authority under the Federal Claims Collection Act, 31 U.S.C. 3711 et seq. This rule is issued in accordance with OMB regulations concerning approved collections of information and to conform to changes made by Public Law 101-552.     

The Fight to Globalize Labor: Understanding the Role of Activists in the Spread of International Norms

International relations scholars have traditionally focused on state-centered accounts of international legal norm development between nations while sociolegal scholars have focused on Weberian notions of occupational authority. This study advances a constructivist sociolegal approach emphasizing activist action as playing a unique role in shaping international norms. Specifically, this study investigates labor activists' intervention in U.S. bilateral and multilateral free trade agreements (FTAs) to examine why labor activists chose to initiate FTA disputes as a social movement tactic and how strategic interaction with international legal systems has helped them institutionalize and proliferate the International Labor Organizations' core labor standards. Through semi-structured interviews with legal, union, and government officials, alongside a content analysis of cases filed under the U.S. FTA system, this study shows the role activists played in advancing “globalized” standards in international law. This study finds that activists spread norms through a gradual mechanism of accretion, which focuses on the creation of standards and international legal standing over the individual outcomes of any given case.     

Young children as regenerative tissue donors: considering the need for legal reform in light of divergent ethical approaches

In Australia, young children who lack decision-making capacity can have regenerative tissue removed to treat another person suffering from a severe or life-threatening disease. While great good can potentially result from this as the recipient's life may be saved, ethical unease remains over the "use" of young children in this way. This article examines the ethical approaches that have featured in the debate over the acceptability and limits of this practice, and how these are reflected in Australia's legal regime governing removal of tissue from young children. This analysis demonstrates a troubling dichotomy within Australia's laws that requires decision-makers to adopt inconsistent ethical approaches depending on where a donor child is situated. It is argued that this inconsistency in approach warrants legal reform of this ethically sensitive issue.     

略论行政紧急权力法治化的缘由与路径

紧急状态是特定语境下的法律概念,只有在紧急状态宣布之后,行政紧急权力的行使才具有正当性。从权力特性、权利保护、法律价值、社会秩序的角度看,行政紧急权力应当法治化。通过对行政紧急权力来源正当性之赋予、运作过程性之追踪、结果有效性之考量,使其得到事前、事中、事后的法律规制,从而实现法治化。     

合规制度的公司法设计及其实现路径

公司法作为合规制度的最重要载体,对整个合规制度的构建具有基础和核心作用。为此,既需要对国外涉及合规要求的制度进行必要的甄别和借鉴,又需要对我国现有的涉及合规要求的规则和制度进行提炼、归集和升华。在兼收并蓄的基础上制定出一部既能满足公司的营利性和道德性双重需要,又能对世界公司法发展起一定引领作用的模范公司法典。具体的实现路径是:首先以塑造公司的良好道德品格为基点,从基本原则层面将合规要求作为公司组织和相关成员的基本义务;然后从具体制度设计层面将其规定为公司组织、公司负责人和公司工作人员的基本行为准则;最后通过缜密的法律责任制度,强化公司的合规意识和道德担当意识。促成公司在成为先进生产力践行者的同时,还要成为社会责任的积极承担者和公序良俗的模范遵守者。     

The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm

Israel's long‐standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever‐shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.     

论预期违约的适用范围及其法律后果

预期违约制度是合同法上违约制度的重要组成部分,不仅英美法系国家的法律对其作出了规定,我国《合同法》在继承大陆法系基本框架和体系的同时,也吸收和借鉴了英美法中的预期违约制度,并对其作出了规定。由于《合同法》规定过于简单,不利于具体操作,本文主要就预期违约的适用范围及其法律后果作一些实际探讨。     

试论立法中省级政府法定职权的设置——推行行政执法责任制引发的思考

在行政立法当中,合理设置各级政府及其所属部门的法定职权,是提高立法质量的起码要求。当前立法中省级政府法定职权的设置存在如下问题:具体行政执法职权设置过多;职权界定不清;缺乏可操作性。立法工作应采取如下措施:避免在立法中赋予省级政府具体行政执法职权;对给省级政府设定的行政处罚权的法律、法规、规章进行清理;对确有必要给省级政府设置具体行政执法职权的,应该采取相应措施,确保可操作性。     

外资并购中维护我国经济安全的法律思考

外资并购可能威胁东道国经济安全是各国都面临的问题。美国、德国等发达国家都建立了较完善的法律制度规制外资并购,有效保障国家经济安全。我国目前对此问题还缺乏系统、有效的法律制约,因而,应尽快完善规制外资并购的法律制度,维护我国经济安全。     

Recent developments in the transracial adoption debate.

This article places the controversy over transracial adoption (TRA) in its historical context and analyzes recent developments in the law governing TRA policy. Because unfounded "authority" from the field of mental health infuses current debate, the authors alert psychiatrists to two powerful forces that improperly influence today's legal arena: community preference for same-race families and biased professional norms of mental health professionals.     

民间借贷规制的重点及立法建议

解决我国民间借贷问题的基本出路在于通过法律创新形成制度激励,引导金融资源优化配置。民间借贷立法应当采用自然演进与建构相结合、一般规范与分类规范相结合的多层次立法体系。在重点借鉴美国、英国、香港地区及我国古代相关立法经验的基础上,结合当前人民法院的司法实践和我国小额贷款公司的试点情况,应当尽快修改相关法律并制定专门性法律文件。民间借贷的专门立法应当只对那些以营利为目的且专门从事借贷业务的机构和个人的商事借贷行为进行规范,重点是对主体准入、放贷利率、经营区域、放贷人的资金来源等加以规范。     

国内武装冲突中的战争犯罪审判问题研究

针对国内武装冲突中的战争犯罪行为,国家立法机关应当提供必要的惩处依据。我国现行刑法、刑事诉讼法和人民法院组织法尚不能适应追究这类犯罪的客观需要。建议通过法律修正案或单行法规的形式,尽快完善相关的实体法、程序法和组织法,促进中国特色社会主义法律体系的健全发展,为军事斗争准备提供必要的法律保障。     

The legal status of abortion in the States if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe. More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would notbe effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.