经济法的部门法理学建构

法理学与部门法学在基础知识领域的互通交融印证了经济法法理学命题的正当性和合法性。部门法哲理化思潮的涌现与经济法的时代转型为开展经济法法理学研究奠定了坚实的理论基础和现实基础。建构经济法法理学体系,首先需要探寻经济法部门的存在基础。在具体的研究实践中,则需要以调整对象问题的探索为视点,着力从经济法的法律关系理论出发,以主体—行为—责任范式框架为基本路径,完成经济法的部门法理学建构。考察经济法之存在基础与经济法法理学命题之间的内在关联可以看出,未来的经济法法理学研究,正在由宏大叙事向微观论证转变,由追求体系独特性向探索哲理化之路靠拢。     

Positive versus Negative Framing Affects Justice Judgments

This research demonstrates the effect of framing on justice judgments. Presenting identical allocation situations in different modes of accomplishing the resource allocation, resulting in either positive (benefits) or negative (harms) outcomes, affects justice judgments. Two independent studies revealed that participants judged non-egalitarian principles (i.e., merit, ability, effort, need, and tenure) as more just when allocation of a resource was presented in the positive framing manner (e.g., to deliver goods or to withhold bads) relative to presenting the exact same resource allocated in a negative framing manner (e.g., to deliver bads or to withhold goods). It is suggested that the way resource allocation is framed evokes favorable (or unfavorable) associations that cause people to judge the situation as more (or less) just.     

Compliance Theory: A Goal Framing Approach

Despite a wealth of publications on compliance and noncompliance, regulation scholars still lack a consistent and comprehensive compliance theory and entertain a collection of partial and incompatible theories instead. This article is an attempt to improve this situation by taking up two interrelated challenges that compliance theorists are facing: to account for the multiple motivations behind compliance and noncompliance behaviors with one internally consistent framework and to account for the interactions between these motivations in other than an additive or ad hoc fashion. The article builds on Siegwart Lindenberg's Goal Framing Theory, which provides consistent accounts of the cumulated and interactive influence of heterogeneous motivations on decisions. The goal framing approach is illustrated with an extensive range of examples borrowed from the empirical literature on regulatory compliance. It thus provides a synthetic framework to account for different types of responses to regulation.     

合宪性审查的地方制度构图

法律法规之外的地方规范性文件是否可能直接违宪,以及其违宪问题由谁处置和如何处置的问题,构成了合宪性审查地方制度的核心关切。规范性文件备案审查体系是合宪性审查制度构成中最全面、最有效的制度实现载体。目前的地方立法对备案审查中合宪性标准的规定整体上呈现出一种谨慎的姿态。究其原因,国家立法对合宪性审查职责配置模糊、“违宪”责任观念上存在误区、合宪性审查地方实践需求不强等多重因素,严重抑制了针对地方规范性文件合宪性审查的地方立法。一直以来,理论界和实务界共筑的“地方人大宪法监督”学说却有力地支撑着合宪性审查地方工作的展开。合宪性审查的地方制度正是由以地方人大宪法监督为主导、同级“一府一委两院”自我纠错为补充的合宪性审查工作体系所构成。     

循环经济法的建构与实证分析

循环经济法是一部环境友好型经济法,是具有可操作性的专项法,与现行其他法律互为补充。循环经济法的调整范围主要包括清洁生产、资源综合利用、资源的再使用、废物再生利用与处置、绿色消费等五个方面的内容。法律基本原则可以概括为减量化、再利用、资源化原则(3R原则);政府引导、市场调节、企业实施相结合原则;扶持与强制相结合原则;公众参与原则和鼓励技术创新原则。我国循环经济法的框架建议按照循环经济实施的过程予以设计,在各个环节中贯彻3R原则的要求。循环经济法可以确立规划制度,鼓励、限制、禁止名录制度,循环经济标准与指标体系制度,生产者延伸责任制度,经济扶持制度等五项基本法律制度。     

Constitutional Irresolution: Law and the Framing of Civil Society

Abstract: Against the constitutional optimism that pervades our political rationality, I will argue the case for a disorganised civil society, genuinely plural, resistant to dominant representations that call it into line and thus undercut its radical potential. I will explore some of the more adventurous and persuasive such attempts to argue for an inclusive constitutionalism, one that supposedly reaches out to civil society and in order to do so relaxes the rigidity of its own terms, to harbour and host the diversity it aspires to represent. I will argue that these attempts at inclusion create constitutional irresolutions either forcing impossible demands on constitutionalism or dispelling the disorganisation it is meant to give expression to. I will then argue that in spite of the inability to capture them as constitutional moments, politics of ‘pure presence’ and real self‐determination are possible, and against constitutional mystifications, resistance might find its opportunity in praxis, understood in the language of praxis philosophy (more specifically the work of Antonio Negri).     

Justice Enhanced: Framing an Opt-Out Class Action for England

This article contends that the absence of an opt-out class action remains a yawning gap within English civil procedure. Various recent reform proposals have favoured opt-in procedural vehicles as the way forward. However, key features of these proposals – an opt-in approach and the use of a representative claimant – are subject to considerable reservations in jurisprudence from both England and elsewhere. Following a critique of these features, the article proposes that an 'opt-out regime with brakes' should be introduced, taking into account both the requirement for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the established Commonwealth statutory class actions regimes.     

构建公共财政框架的经济法思考

随着社会主义市场经济体制的建立和完善 ,必将带来财政职能的调整和转换 ,表现在政府财政退出“越位” ,弥补“缺位” ,财政应理性地退出私人商品生产领域 ,而转向为公众提供公共商品和公共服务。公共财政实质上是对政府财政职能的定位 ,直接引起我国政府经济行为的变革 ,必将推进财政的民主化和法治化建设。作为规范国家宏观调控经济关系的经济法当然是建构公共财政的框架的指导理论 ,同时公共财政框架的建立也必将促进我国现行财政法体系的完善。     

美国宪法制订过程中关于军事问题的辩论

宪法的崇高性与军事在国家发展中的重要性决定了从宪法的视角研究军事法学的必要性。本文在分析美国宪法军事条款产生的背景的基础上,分析了制宪者关于战争和安全的认识、关于保障安全和自由的制度设立的辩论、制衡军事权力保障国家的安全和公民的自由制度设计,并研究了反联邦党人关于宪法军事规定的责难及《权利法案》的产生过程,在此基础上剖析了美国宪法制订过程中关于军事问题的辩论对美国社会生活的影响,以期探讨支撑美国军事强势地位的法律制度根源并从一个独特的角度寻求国家长远性发展的一种理论性支撑。     

Framing innocents: the wrongly convicted as victims of state harm

We adapt the victimology of ‘state harms’ framework outlined by Kauzlarich et al. (Critical Criminology, 10(3), 173–194, 2001) to understand the post-exoneration experiences of 18 death row exonerees. Kauzlarich et al. develop six points of commonality shared by most victims of state crime. Application of this framework to death row exonerees highlights the role the state plays in creating and exacerbating the harms they suffer. This analysis also lays a foundation for further theoretical inquiry into the wrongful conviction of the innocent as a form of state crime.     

The Effect of Framing Actuarial Risk Probabilities on Involuntary Civil Commitment Decisions

Despite a proliferation of actuarial risk assessment instruments, empirical research on the communication of violence risk is scant and there is virtually no research on the consumption of actuarial risk assessment. Using a 2 × 3 Latin Square factorial design, this experiment tested whether decision-makers are sensitive to varying levels of risk expressed probabilistically and whether the framing of actuarial risk probabilities is consequential for commitment decisions. Consistent with research on attribute framing, in which describing an attribute in terms of its complement leads to different conclusions, this experiment found that the way actuarial risk estimates are framed leads to disparate commitment decisions. For example, risk framed as 26% probability of violence generally led decision-makers to authorize commitment, whereas the same risk framed in the complement, a 74% probability of no violence, generally led decision-makers to release. This result was most pronounced for moderate risk levels. Implications for the risk communication format debate, forensic practice and research are discussed.     

Framing Capital Punishment in Japan: Avoidance,Ambivalence, and Atonement

This article examines how two of Japan’s largest newspapers frame death penalty issues. Through a content analysis of 7,153 Asahi and Nikkei articles in the 66-month period from January 1, 2007 to June 30, 2012, 11 death penalty frames are identified: inevitability, atonement by dying, atonement by living, victims’ rights and emotions, human rights, miscarriage of justice, calls for discussion, life without parole, deterrence, public support, and retribution. In addition to frames, we examined who the main voices are in each article on capital punishment. We found that avoidance and ambivalence are the two main approaches taken by Asahi and Nikkei to cover death penalty issues, and the most surprising finding is the high salience of atonement as a frame for thinking about capital punishment. In Japan, atonement is used to justify (atone by dying) and oppose (atone by living) the death penalty. Although atonement by living in prison and atonement by dying at the gallows imply radically different outcomes, the flexibility of the atonement frame may suggest new possibilities for Japan’s anti-death penalty movement.     

Framing Organizational Reform: Misalignments and Disputes among Parole and Union Middle Managers

Any time organizations undertake change processes there are questions about mobilizing support for the change ( Vallas 2003 ). Two essential factors for mobilizing support are (1) how organizational change is framed by both the organization and its employees and (2) whether or not the change is framed in a way that aligns in any meaningful way with actors' interpretations. This article considers middle managers as first‐line interpreters of organizational policy changes and offers a look at their patterned response to reform mandates. Middle managers' interpretation of changes in organizational policy or practice provides vital information for workers about how the reform fits with larger organizational and personal goals. Using data collected in three years of ethnographic fieldwork with parole personnel in California during correctional reform, I argue that organizational and union middle managers' differing definitions of, and solutions for, policy reform create an outlet for intraorganizational frame misalignments and disputes with the potential for restricting or halting change.     

Frame Spillover: Media Framing and Public Opinion of a Multifaceted LGBT Rights Agenda

Between May and July 2003, a shift in how the US public viewed the legality of consensual homosexual sex occurred. While in May the largest percentage of respondents to date supported decriminalizing such activity, that percentage dropped eleven points two months later. Similar declines in support were evident in the same period over a range of gay and lesbian rights claims. The ruling in Lawrence v. Texas (2003) decriminalizing homosexual sex is the obvious intervening event. To explain this pattern, coding of print and televised news coverage of the ruling throughout 2003 was undertaken. Coverage was not overtly negative in terms of antigay rhetoric or hostility toward the judiciary; rather, the dominant media frame focused on the implications of Lawrence for an entirely separate rights issue: marriage equality. This article examines the dynamic of frame “spillover,” or the idea that media focus on a distinct and not widely supported rights claim in a multifaceted rights agenda might depress support across the entire rights agenda. The findings call for further research, and they have implications for scholarship on public opinion, social movement framing, and ideational development and policy debate as studied within the broader field of American political development.     

Web Site Framing: Copyright Infringement through the Creation of an Unauthorized Derivative Work

This article argues that the framing of others' sites on the World Wide Web-the trapping of another's Web site within one's own site, sometimes known as "in-line" linking-creates a derivative work and is, thus, copyright infringement, when the derivative work was created without permission of the copyright holder. Such linking alters the framed Web site, modifies it, re-packages it in a way its author did not intend and transforms it, misrepresenting the author's work in the process, either by attributing the work to someone else or attributing a creation to the author that the author did not produce.     

Exploring the Justice of Punishments: Framing, Expressiveness, and the Just Prison Sentence

This paper examines views about the justice of punishments for offenders convicted of five major types of offenses—drug, violent, corporate, property, and victimless crimes. We focus on the just punishment and the just dispersion in the punishment distribution, together with observers' framing and expressiveness; and we test for interrespondent differences. Data are drawn from six U.S. samples interviewed in 1982, a probability sample of the adult population of a major city and samples of five special groups, prison inmates, police officers, law-school and high-school students, and Job Corps trainees. Respondents' judgments were obtained using Rossi's factorial survey method. Fictitious offenders were constructed by randomly combining offender, offense, and victim characteristics; and respondents used a line-matching technique to rate the justice of punishments randomly assigned to fictitious offenders. Analysis is guided by the framework for empirical justice analysis, which provides an integrated set of procedures for estimation and testing. Results indicate that respondents in all samples save one disagree with each other on the just punishment; and the six samples yield four distinct average orderings of just prison sentences. However, large majorities in all six samples find the dispersion in the punishments experimentally put into the vignette world to be too small relative to the just dispersion. More broadly, comparing the results obtained here from the probability sample of a major city with results from a comparable study on the justice of earnings, we find two interesting symmetries—approximately 1% of the general population is contrarian, regarding earnings as a bad and time in prison as a good; and approximately 92% to 94% of the population regard earnings inequality as too high and prison-time inequality as too low. Finally, this study provides additional evidence that the general population in the United States exhibits independence of mind informing their ideas about what constitutes the just earnings and the just punishment.     

Framing Henry Ford's War: Representation,Speech, and the New Civil Rights History

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. In this essay, I respond to three readers of my book, Henry Ford's War and the Legal Battle Against Hate Speech, by embracing the opportunity to reconsider the book's theoretical and historiographical frames. I synthesize the contributions that Clyde Spillenger, Carroll Seron, and Aviam Soifer make in their deep readings of the book and respond to their criticisms. I then place the book into a new interpretive frame that is emerging in the field of the “new civil rights history,” as it is now being conceptualized in the work of Risa Goluboff, Kenneth Mack, Tomiko Brown‐Nagin, and others writing on civil rights advocacy in the twentieth‐century United States.     

Professional regulation

Recent years have witnessed an increase in interest in professional regulation. The extent to which the professions should control professional regulation and the provision of professional services is the issue at stake. The strengthening of societal forces and attitudes on either side has intensified matters. Forces on the side of professional dominance include tradition, expertise, and politics. Opposed are individual liberty and individualism, theories of free enterprise, and egalitarianism. The controversy has also been influenced by recent political developments involving the emergence of two antiregulatory movements: the “control” movement, and the “antigovernment” movement. The former involves an attempt to control government regulatory power. The latter is a more broad-based political attack on regulation aimed at less government in general. The most significant impact of the current controversy is that professional regulation has become an important public issue.