从行政机关应诉看行政执法应注意的问题

重视合法性、轻视合理性;重实体、轻程序;执法效率意识滞后、行政服务观念淡薄,仍在行政执法中存在。加强行政执法,提高行政执法水平任重道远。     

Amendment of the fee exemption for federal, state and local government employees--DEA, Justice. Final rule

This final rule limits the exemption from payment of application fees for registration or reregistration to Federal, state, or local government operated hospitals or institutions. This will eliminate the need for DEA to dedicate manpower or other resources to controlling abuse of the fee exempt status.     

Applying antitrust law to nonprofit healthcare entities: arguments for a greater attention to detail

This Article begins with an antitrust primer, then analyzes the appropriate application of antitrust principles to nonprofit healthcare providers. In light of the inherent charitable character of nonprofit healthcare providers, the author contends that the government and the courts should accord some deference to nonprofit hospitals when they are seeking approval of mergers. To date, this has not generally been the case, although a few recent court decisions have rested their approval of mergers, in part, upon the nonprofit character of the merging entities. The author, in particular, believes the paradigmatic local nonprofit hospital with a community board is less likely than a for-profit hospital to abuse any market power that it may obtain through a merger; consequently, any such merger should not be analyzed solely under the traditional presumptions of antitrust jurisprudence. Rather, the premerger analysis should involve meaningful consideration of the hospital's charitable character.     

Innovation in the public sphere: reimagining law and economics to solve the National Institutes of Health publishing controversy

The National Institutes of Health (NIH) are responsible for the largest proportion of biological science funding in the United States. To protect the public interest in access to publicly funded scientific research, the NIH amended terms and conditions in funding agreements after 2009, requiring funded Principal Investigators to deposit published copies of research in PubMed, an Open Access repository. Principal Investigators have partially complied with this depository requirement, and the NIH have signaled an intent to enforce grant agreement terms and conditions by stopping funding deposits and engaging in legal action.The global economic value of accessible knowledge offers a unique opportunity for courts to evaluate the impact of enforcing ‘openness’ contract terms and conditions within domestic and international economies for public and economic benefit. Through judicial enforcement of Open Access terms and conditions, the United States can increase economic efficiency for university libraries, academic participants, and public consumers, while accelerating global innovation, improving financial returns on science funding investments, and advancing more efficient scientific publishing models.     

Three meanings of capacity; or,why the federal government is most likely to lead on insurance access issues

This essay considers on what health policy issues the federal government is best able to lead. Positive leadership requires knowledge, power, and will. The federal government has different supplies of each for different aspects of quality of, cost of, and access to health care. Here I review technical capacity to attain desired ends, define the institutional strengths and weaknesses of the federal government, and outline current dynamics of the national political process. This analysis suggests both prospects for and some characteristics of successful policy. The federal government is more likely to lead on insurance than on other health policy issues because its supply of relevant knowledge and power is relatively high on insurance issues and the political barriers are lower than conventional wisdom suggests. But that leadership could take the form of either the expanding or contracting of access to insurance.     

Revised federal allotments to states for social services expenditure pursuant to Title XX--Social Services Block Grant Act; promulgation for fiscal year 1985--HHS

The FY 1985 Federal allotments of $2.6 billion to States for social services under Section 2003 of the Social Security Act (Act) which were published in the Federal Register on October 27, 1983 (48 FR 49697) were based upon the authorization set forth in Section 2003 of the Act at the time they were prepared. Pub. L. 98-135, enacted October 24, 1983, amended Section 2003 of the Act by increasing the authorization to $2.7 billion for Fiscal Year 1984 and each succeeding fiscal year. Accordingly, the initial promulgation is rescinded and the promulgation as revised is set forth in the table below. These allotments are contingent upon Congressional appropriations actions for the year. If the Congress enacts, and the President approves, an amount different from the authorization, the allotments will be adjusted proportionately.     

Revised federal allotments to states for social services expenditures pursuant to Title XX--Social Services Block Grant Act; promulgation for fiscal year 1984--HHS. Notification

The Federal allotments of +2.5 billion to States for social services under Section 2003 of the Social Security Act (Act) which were published in the Federal Register November 26, 1982 (47 FR 53502) were based upon the authorization set forth in Section 2003 of the Act at that time and were contingent upon Congressional appropriations actions for the fiscal year. Public Law 98-135, enacted October 24, 1983, amended Section 2003 of the Act, by increasing the authorization to +2.7 billion for Fiscal Year 1984 and each succeeding fiscal year. The allocation of this authorized amount for Fiscal Year 1984 is shown in Column 1 of the table below, and it too is contingent upon Congressional appropriations actions. Public Law 98-139, enacted October 13, 1983 appropriates +2.675 billion for allocation to the States under Section 2003 of the Act for Fiscal Year 1984. The allocation of this appropriated amount is shown in Column 2 of the table below. Accordingly, the promulgation made in 47 FR 53502, November 26, 1982, is rescinded and the promulgation, as revised, is set forth in Column 2 of the table below.     

Infanticide, physicians, and the law: the "Baby Doe" amendments to the Child Abuse Prevention and Treatment Act

Infanticide, like most other species of homicide, is probably coeval with the human race itself. In modern Western civilization, what were formerly the most powerful incentives to infanticide have virtually disappeared. As with other social problems that affluence has seemed to solve, however, infanticide has reappeared in a new form that seems to have been made possible by affluence itself. This "new infanticide" occurs in a place whose very existence is the result of a tremendously wealthy society's devotion to its most vulnerable and least "useful" members. The modern neonatal intensive care unit, which treats, and often saves, extremely ill newborn children, who during most of history would surely have died, has proven to be a setting where many of the age-old incentives for infanticide have begun to operate again. The "new infanticide" consists of withholding food or needed medical treatment from selected infants who suffer from one or more serious, though treatable, medical problems. The national government has now enacted legislation designed to curtail the practice of infanticide by the medical profession. This paper traces the genesis of that legislation, explores the problem to which it is addressed, and evaluates its prospects for success.     

新闻侵权诉讼中应坚持“效率优先，兼顾公平”的原则

近年来,新闻机构和新闻记者在进行舆论监督或发表批评性报道和评论时引起的侵权案件一直呈上升趋势。而我国目前尚无新闻法,只好采用民法来判定,这就造成了在新闻侵权诉讼实际操作中,使公民的舆论监督权与公民的名誉和人格尊严的保护在一定程度上存在失衡。为了公平起见,新闻侵权诉讼中应坚持“效率优先,兼顾公平”的原则。     

Revised federal allotments to states for social services expenditures pursuant to the Title XX--Social Services Block Grant Act; promulgation for fiscal year 1983-HHS. Revised notification

Public Law 97-248, enacted September 3, 1982, among other things, amended Sec. 1101(a) of the Social Security Act, as amended, (Act) to define the term State when used in Title XX to no longer include American Samoa and the Trust Territory of the Pacific Islands. The Federal allotments to States for social services under Section 2003 of the Act which were promulgated in Vol. 46, No. 229 of the Federal Register page 58186 on November 30, 1981, included American Samoa and the Trust Territory of the Pacific Islands. Accordingly, the promulgation contained in such document is rescinded and the promulgation, as revised, is set forth in this issuance.     

Robots,standards and the law: Rivalries between private standards and public policymaking for robot governance

This article explains the complex intertwinement between public and private regulators in the case of robot technology. Public policymaking ensures broad multi-stakeholder protected scope, but its abstractness often fails in intelligibility and applicability. Private standards, on the contrary, are more concrete and applicable, but most of the times they are voluntary and reflect industry interests. The ‘better regulation’ approach of the EU may increase the use of evidence to inform policy and lawmaking, and the involvement of different stakeholders. Current hard-lawmaking instruments do not appear to take advantage of the knowledge produced by standard-based regulations, virtually wasting their potential benefits. This fact affects the legal certainty with regards to a fast-paced changing environment like robotics. In this paper, we investigate the challenges of overlapping public/private regulatory initiatives that govern robot technologies in general, and in the concrete of healthcare robot technologies. We wonder until what extent robotics should be governed only by standards. We also reflect on how public policymaking could increase their technical understanding of robot technology to devise an applicable and comprehensive framework for this technology. In this respect, we propose different ways to integrate the technical know-how into policymaking (e.g., collecting the data/knowledge generated from the impact assessments in shared data repositories, and using it for evidence-based policies) and to strengthen the legitimacy of standards.     

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.