Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation

This article explores how private organizations influence the content and meaning of consumer protection legislation. I examine why California forced consumers to use a private dispute resolution system that affords consumers fewer rights, while Vermont adopted a state‐run disputing structure that affords consumers greater rights. Drawing from historical and new institutional theories, I analyze twenty‐five years of legislative history, as well as interviews with drafters of the California and Vermont laws, to show how automobile manufacturers weakened the impact of a powerful California consumer warranty law by creating dispute resolution venues. As these structures became institutionalized in the lemon law field, manufacturers reshaped the meaning of legislation. Unlike California, the political alliances in Vermont and a different developmental path led to a state‐run dispute resolution structure. I conclude that how social reform laws are designed and how businesses influence social reform legislation can increase or decrease the achievement of a statute's social reform goals.     

评美国反基因歧视法律实践及其启示

为防治基因技术的滥用和基因信息歧视,以《2008年禁止基因信息歧视法》为代表的美国联邦和州立法积极实施干预,以确保所有人雇佣机会平等、享有平等健康保险待遇,全面参与社会生活.美国反基因歧视法内容详尽,既禁止基因信息歧视行为,又兼顾保险公司、雇主的合理要求以及避免可能给第三人及公众带来的风险,使违法行为几乎“无缝隙可钻”,且法律对公立雇主的要求高于私立雇主.美国反基因歧视法律实践,对于我们客观认识和把握平等权,完善相关立法和公共政策,具有一定启迪.     

The Proposed 100 by 50’ Act: Protecting Collective Bargaining of Workers in a “Just Transition” to a Clean-Energy Future

There is a longstanding misconception that any overlap between environmental policy and labor rights results in conflict. With the intensifying threat of climate change and the decline of fossil fuel development, international labor and climate groups have collaborated to develop a framework for a just transition to sustainable development that emphasizes social dialog between stakeholders. An increasing number of nations are guided by this framework as each incorporates its own transition model. The United States, however, remains on the sidelines. This article proposes that the U.S. enact recently proposed legislation to transform its energy sector, while also protecting its workers and the environment.     

No fats,femmes, or Asians: the utility of critical race theory in examining the role of gay stock stories in the marginalization of gay Asian men

In the last few decades, proponents of critical race theory have uncovered everyday forms of injustice that continue to affect the lives of men and women of color by exposing the subtle forms of racism that exist in the stock stories told by the dominant group as well as the counterstories told by subaltern groups. However, rarely have we examined the stock stories articulated by subaltern groups to marginalize other subaltern groups. In this paper, I consider the stock stories told by gay White men and the counterstories expressed by gay Asian men to examine subtle forms of racism within the gay community. I argue that we need not only to reveal how the stories narrated by the dominant group continue to maintain social inequality, but that we also need to consider how subaltern groups help to maintain social inequality by adapting the language of the dominant group to use against other subaltern groups.     

Peculiar Institutions: Slavery,Sectionalism, and Minority Obstruction in the Antebellum Senate

This article examines obstruction in the U.S. Senate, focusing on political conflict in the antebellum period. I consider different theories that predict when obstruction should occur and conduct individual‐level analysis of the use of and support for dilatory tactics. The analysis investigates how the costs of obstruction, the probability that obstruction succeeds, the policy preferences of the senator, and the salience of legislation relate to decisions to obstruct. I find that both sectional and partisan factors influence obstruction, with the former being especially important for legislation related to slavery. In particular, Southern senators' concerns about being in the minority led them to obstruct to protect their interests in slavery.     

Does strict judicial scrutiny involve thetu quoque fallacy?

To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute.I show concretely how the Court has erred in specific cases. I also point out how the doctrine of judicial review prevents the Court from availing itself of the remedy that logic would demand.Lastly, I consider the possibility that the Court uses the doctrine of strict scrutiny to strike down legislation that the Court suspects has an impermissible motive. I conclude that if the Court has evidence of an impermissible motive, it could present an inductive argument for such a motive and strike the legislation down for that reason. Using thetu quoque fallacy does not advance the search for the impermissible motive.This paper was read at the American Philosophical Association Central Division Meeting in New Orleans on April 27, 1990.     

Law From Below: Women's Human Rights and Social Movements in New York City

Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law "from below": a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.     

Offending Patterns Among Southeast Asians in the State of California

Abstract

Using California's Monthly Arrest and Citation Register (MACR) data collected by the California Department of Justice for the years 1991-1996, this study examined odds of arrest for various violent and lucrative type offenses, across seven different Asian ethnic groups. To avoid selection bias, African Americans, Hispanics and Native Americans were also included in the analysis. Logistic regression models were fitted to the MACR data. Consistent with theoretical hypotheses, the authors found that Southeast Asian immigrants were more likely to engage in criminal activity than their white counterparts and more established Asian groups. Logistic regression results revealed that Southeast Asians, in particular Vietnamese, were over-represented in every arrest category, while non-refugee Asian groups were considerably underrepresented in arrests. Cambodians, Laotians, and Vietnamese were at significantly higher odds of arrest for crimes that tended to produce financial gain, such as theft, car theft, and petty theft. The authors suggest that their findings on Southeast Asians may in part reflect the unique nature of the immigration of members of this group to the U.S., and the multiple disadvantages that they continue to experience, for example, low human capital, lack of English proficiency, and ethnic prejudice and discrimination. Results suggest the need for more programs aimed at assisting Southeast Asians refugee immigrants with their transition into American society.     

Economic Libertarians and the Hyperlink: A Preliminary Investigation into an Ideological Practice

Use of the Internet by activists is part of contemporary politics, yet we understand little about the way in which this use is related to ideological production. This paper describes the basis for and discusses an on-going research project in its early stages that seeks to understand the use of hyperlinks to create meaning on the World Wide Web. It particularly focuses on the way in which economic libertarians in the U.S. have provided links to the web pages of likeminded individuals. I theorize these links as a social practice that is informing the way in which property rights are being understood by a highly influential group of lawyers and legal activists in the U.S. Through an analysis of the links found on the web pages of lawyers who have been working to advance a free market vision of property and economic rights, I speculate on a way to understand hyperlinking as meaning creation.Several people have assisted this research in various ways and deserve to be thanked. Heath Mills, my gradute assistant at Northern Illinois University spent many hours looking at and documenting web pages. I also wish to thank the members of the International Roundtable on Law and Semiotics, which met in Amherst, Massachusetts in April 2003, for their wonderful helpful comments.Finally, thanks to Brigham for always supporting my work and providing insightful commentary; and to Taag Ebert for patiently helping me translate the language of computer engineering into the language of political science and language studies.     

Ethnic Law and Minority Rights in China: Progress and Constraints

Western discourse on human rights in China typically assumes that China's minority rights law must be a sham because China is an authoritarian state. In the 1980s and 1990s, however, China has articulated an "ethnic law" that elaborates rights and preferences that minorities value. At the same time, People's Republic of China ethnic law is inadequate to grant the idealized range of minority rights claimed by the Chinese state, and some rights are being eroded by the marketization of China's political economy. The most notable weaknesses in the ethnic law system include the failure to enlarge the scope of ethnic regional autonomy, a lack of preferential policies sufficient to offset the growth of the economic gap between Han and minority areas, and an inadequate program for overcoming antiminority bias. While an emerging minority elite is a stabilizing factor in minority‐state relations, additional measures to expand minority rights are required, some of which are suggested by the policies of other Asian states.     

The Significance of Marriage: Contrasts between White British and Ethnic Minority Groups in England

It is widely believed that the institution of marriage enhances communal wellbeing, and governments in the United States and the United Kingdom have expressly adopted policies designed to "promote" marriage. These policies, however, are little informed by evidence about how people who marry are using the institution, or how entering or not entering marriage affects people's ideas about the rights and obligations they owe within intimate partnerships. An Oxford study has sought to explore these issues. The study allowed special attention to be paid to the way individuals with differing ethnic backgrounds responded to the investigation, and the current article reveals the results. They show that marriage is used in a variety of ways, and that these uses may vary between ethnic groups. The evidence suggests that the usefulness which people find in marriage may depend on cultural and individual factors that are independent of the goals that government policies seek to promote.     

Weighing both sides: morality, mortality, and framing contests over obesity

Despite recent and growing media attention surrounding obesity in the United States, the so-called obesity epidemic remains a highly contested scientific and social fact. This article examines the contemporary obesity debate through systematic examination of the claims and claimants involved in the controversy. We argue that four primary groups-antiobesity researchers, antiobesity activists, fat acceptance researchers, and fat acceptance activists-are at the forefront of this controversy and that these groups are fundamentally engaged in framing contests over the nature and consequences of excess body weight. While members of the fat acceptance groups embrace a body diversity frame, presenting fatness as a natural and largely inevitable form of diversity, members of the antiobesity camp frame higher weights as risky behavior akin to smoking, implying that body weight is under personal control and that people have a moral and medical responsibility to manage their weight. Both groups sometimes frame obesity as an illness, which limits blame by suggesting that weight is biologically or genetically determined but simultaneously stigmatizes fat bodies as diseased. While the antiobesity camp frames obesity as an epidemic to increase public attention, fat acceptance activists argue that concern over obesity is distracting attention from a host of more important health issues for fat Americans. We examine the strategies claimants use to establish their own credibility or discredit their opponents, and explain how the fat acceptance movement has exploited structural opportunities and cultural resources created by AIDS activism and feminism to wield some influence over U.S. public health approaches. We conclude that notions of morality play a central role in the controversy over obesity, as in many medical disputes, and illustrate how medical arguments about body weight can be used to stymie rights claims and justify morality-based fears.     

试论GATT/WTO协定之私人执行——一个美国法的视角

私人执行GATT/WTO协定是指私人如何行使在GATT/WTO协定下的国家贸易权利。"1934年体制"下"进口竞争性产业"与"出口导向性产业"之间的博弈使得美国国会与总统在共同行使国家经济主权中,通过缔结GATT/WTO协定,为美国创设了市场准入权利与贸易救济权利。这些贸易权利要在国内法中被私人执行,则必须创新国内进口与出口贸易救济制度。     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

MUDDLING THROUGH THE MURKY WATERS OF TROXEL

A critical case in the area of third-party visitation rights was decided by the U. S. Supreme Court in July 2000 ( Troxel v. Granville ). A plurality in this case held that a Washington grandparent visitation statute was not facially unconstitutional but was as applied to the facts of that case. The author discusses the varying opinions of the Supreme Court justices in the Troxel decision. Next, he analyzes the plurality opinion to determine the appropriate standard of review in grandparent visitation cases. Following is a consideration of how the decision will affect other state grandparent visitation legislation. Examining these issues, the author concludes that future third-party visitation cases will be decided on a fact-specific, case-by-case basis.     

Ethnic Profiling: A Rising Challenge for European Human Rights Law

Ethnic profiling, defined as the use of racial, ethnic or religious background as a determining criterion for the adoption of law enforcement decisions, has been rising significantly in Europe, in particular in the wake of the terrorist attacks of 11 September 2001. This article examines whether European human rights law is well equipped to deal with this challenge, and if not, how it should be reformed. Against the widely held assumption that personal data protection legislation is insufficiently protective of 'sensitive' data relating to race or ethnicity, it explains instead why combating ethnic profiling has been made more difficult, rather than less, by an overly protective reading of the requirements of data protection laws. It then discusses the additional measures that European states could take to address more effectively the human rights concerns prompted by the development of ethnic profiling.     

THE POTENTIAL DEMISE OF ANOTHER NATURAL MONOPOLY: NEW TECHNOLOGIES AND THE ADMINISTRATION OF PERFORMING RIGHTS

This is a second in a series of two articles in which I challengethe collective administration of performing rights. In the firstarticle, published in a recent issue of this journal, I questionedthe natural monopoly paradigm that dominates the analysis ofcollective administration of performing rights. In this articleI demonstrate how, by lowering many of the transaction costswhich previously purported to justify the practice, new digitaltechnologies further undermine the justification for collectiveadministration. I also discuss whether market forces alone wouldtransform the market into a competitive one, consider possiblecontinuing roles for existing performing rights organizations,and compare the Canadian and the U.S. regulatory approachesto determine how conducive they are to such change.     

U.S. experiences with racial and ethnic profiling: history, current issues, and the future

The issue of racial and ethnic bias in policing has been the focus of legal and criminal justice scholarship, court action, and public debate in the U.S. for a number of years. The issue has also been prominent in criminal justice scholarship, public discussion, and policy making in other countries, particularly the U.K., for an even longer period. This article surveys the history of the issue in the U.S. and attempts to give scholars and policy makers the benefit of the insights gained through the U.S. experience in handling the issue. Among these are the importance of the empirical question of the “hit rate” and how police use of race or ethnicity as a criterion changes it, and the difficulties of dealing with the thorny benchmarking issue. The article also discusses how advocates in the U.S. have attempted to meet and overcome arguments that police and their supporters have made in an attempt to minimize the problem or justify doing little or nothing about it.     

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes'restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.