From Public Interest to Private Rights: Free Speech, Liberal Individualism, and the Making of Modern Tort Law

Drawing on John Witt's 2007 book , Patriots and Cosmopolitans: Hidden Histories of American Law, this essay explores the role of the interwar civil liberties movement in rehabilitating the discourse of rights and privatizing the American welfare state. In the years after World War I, most proponents of free speech were hostile to Lochner- era legalism and preferred to pursue civil liberties through legislative and regulatory measures as a means of advancing the public interest. By the onset of World War II, however, they had instead adopted a court-centered strategy that emphasized individual autonomy. The popular and political resonance of their new state-skeptical vocabulary suggests that post-New Deal liberalism in America was a hybrid of classical and Progressive approaches.     

美国被害人权利宪法化运动及启示

美国的被害人权利保护运动又呈现出权利入宪的最新发展动向,这场运动引发了美国社会关于被害人权利保护模式与范围的激烈争论,被害人权利宪法化运动足以透射出一国传统的诉讼法律观以及被害人与被告人利益之关系,被害人与政府利益之关系等多维度的价值空间,并为我国被害人权利保护提供有益的借鉴。     

The Coase Theorem, Private Information, and the Benefits of Not Assigning Property Rights

Using a simple bilateral trading example with discrete valuations and costs it is demonstrated that in the presence of private information the efficiency of Coasean bargaining may be strictly enhanced if initially no property rights are assigned.     

请求权、私权救济与民事权利体系

引言民法是一个以权利为核心而构筑起来的制度体系,基于“无救济即无权利”之理念,对于权利救济理论的研究,应当成为民法理论中关于权利制度的一项重要内容。就私权结构而言,民法为保护特定利益而设置的权利,并不只是一种静止的权利,而是设定了一系列前后相连的权利,前面的权利     

Protection, Parity, or Promotion: Public Attitudes to Cohabitation and the Purposes of Legal Reform

Cohabitation law reform may be informed by different purposes. Three are considered in this paper: protection of parties at risk when relationships break down, parity of treatment between different forms of partnership, and the promotion of particular family forms. These are considered in relation to the Family Law (Scotland) Act 2006 in the context of recent evidence about public attitudes towards cohabitation. Public attitudes and the approach adopted in the 2006 Act are juxtaposed, raising questions about the alignment of public attitudes and the direction of law reform on cohabitation.     

The Right to Privacy Is Political: Power, the Boundary Between Public and Private, and Sexual Harassment

This paper concerns the relationship between power and the ability to defend the night of privacy. The discourse of public and private spheres has shifted historically, engendering arbitrary and changing legal and cultural definitions of the boundary between public and private. Historic specifications of this boundary have become untenable as increasing numbers of women entered the paid labor force. Recent formulations define the boundary of privacy as an area within each individual's life. However, greater social power increases the ability to protect personal privacy because it offers the ability to define and protect the "private" from scrutiny.
After outlining the history of the shifting public/private boundary, this argument is applied to sexual harassment. Explicitly sexual types of harassment are related to the public/private boundary in two ways. First, they challenge the boundary itself, representing the occurrence of "private" conduct in the "public" sphere of work and education. Second, sexual harassment reveals the importance of social power in defining and defending one's privacy. Sexual harassment represents the extreme on a continuum of communication patterns between status unequals, and an invasion of the sexual privacy of the target.     

宪政建设与建设地修宪

一 从一定意义上讲,宪政实际上就是一个社会反复出现的按照宪法的条文与精神而展开的政治运作及其习惯,是一个民族长久以来形成的文化传统与道德观念在政治层面的折射,是人类社会政治智慧和经验的积累与结晶,它所赖以建立的基础不是一部完美的成文宪法,而是一个民族、一个社会由来已久所形成的对法治的信仰与崇拜、对权力的警惕与防范、对人权的尊重与珍视等等政治经验和文化基因.     

侵犯公民个人信息罪的法益重构:从私法权利回归公法权利

侵犯公民个人信息罪的法益不是私法上的个人信息自决权.个人信息不等于个人私有信息,个人对其信息并不具有完全的排他性支配权.侵犯公民个人信息罪的法益观应该从私法角度转向公法角度,刑法保护个人信息的目的不是确权,而是规避风险.公法上的个人信息受保护权既不是私法上的个人信息自决权,也不是超个人的信息公共安全.个人信息按照其私密性高低,分别属于三个不同领域,即最核心层的隐私领域、中间层的私人领域、最外层的社会领域.个人信息所属的不同领域直接影响到本罪构成要件符合性的判断.个人同意并不是本罪违法性判断的决定性因素,获得个人同意的行为当然不应该构成犯罪,但未获得个人同意的行为也可能不构成犯罪.     

Constitutional Reform, the Lord Chancellor, and Human Rights: The Battle of Form and Substance

This article examines the impact of the Human Rights Act on the government's constitutional proposals for reform of the role of the Lord Chancellor and the appointment of the judiciary. It also looks at the uncertain acceptance of a 'human rights' culture by the department charged with lead responsibility for its implementation. It concludes that the government went further than was required in reforming the role of the Lord Chancellor. As a consequence, considerable - and possibly undue – weight now hangs on the enlarged role of the Lord Chief Justice. Meanwhile, the Department of Constitutional Affairs and its ministers have rejected the 'rule of law' brief of the Lord Chancellor without clarity as to where such responsibilities might now be adequately located within government.     

Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case

The tendency of English libel law to protect reputation at the expense of freedom of expression makes the United Kingdom a potentially attractive forum for retaliatory lawsuits against individuals and organizations who lobby or campaign against the interests of large companies. The most prominent recent example of such a lawsuit was the so-called 'McLibel' case, in which McDonald's Corporation sued protesters who had distributed anti-McDonald's leaflets outside some of the company's restaurants. The case is often cited as evidence that the risk of unfavourable publicity generated by retaliatory libel actions is a strong deterrent to using the libel laws to silence public opposition to corporate activities. This article uses a technique widely employed in financial economics research, the 'event study' method, to investigate whether the unanticipated bad publicity attracted by the McLibel case had a negative financial impact on McDonald's, such that future retaliatory lawsuits might be deterred.     

股权分置改革中的行政授予与补偿协商:公法与私法的融合

中国的股权分置改革一方面要使非流通股股东取得流通权,另一方面也要让流通股股东获得合理补偿以求改革能够稳定推进。传统观点下的契约理论和行政征收理论均不能适切解释中国的股权分置改革方案。在公、私法融合背景下,美国学者新近提出的行政授予(regulatory givings)学说,可与大陆法上的行政行为附款理论相互协力,为股权分置改革方案提供正当性基础。应须指出,中国的改革方案通过非流通股股东和流通股股东协商的方式进行估价和实现补偿,采用财产法则而非补偿法则保障流通股股东的权益,实属符合经济效率之举。然而,本方案仍有诸多值得改进之处。     

Constructing the Rights of Nature: Constitutional Reform,Mobilization, and Environmental Protection in Ecuador

In 2008, Ecuador became the first country to grant legal rights to nature. In this article, I examine how this happened. I show that while proponents of nature's rights acted during a key political moment, their efforts were successful due to the presence of environmentalist social movements that elevated the environmental agenda at the national level during prior decades, and due to the power of indigenous organizations and their call to recognize Ecuador as a “plurinational” polity, demanding respect for indigenous territories and ways of life and incorporating politicized versions of indigenous beliefs about the environment. The study considers the consequences of mobilization for legal innovation and institutional change, and shows the complexity of struggles over the environment in the global South. It is based on research at the Ecuadorian National Legislative Assembly archive, semistructured interviews with respondents involved in the politics of nature and the constitutional assembly, and secondary historical sources.     

To Filter or Not To Filter: The Role of the Public Library in Determining Internet Access

To filter or not to filter-that is the question facing public librarians who are trying to decide whether to install Internet blocking software on computers. The filtering question hinges on the First Amendment, balancing adults' rights to constitutionally protected speech against the protection of minors and determining what materials might be considered harmful to minors. The purposes of this article are to examine the theoretical and practical aspects of blocking Internet content and to analyze the 1998 federal district court's ruling that found a Virginia library's filtering policy was unconstitutional. In addition, this article will review alternatives designed to protect minors and propose a three-pronged solution that both ensures adults' access to constitutionally protected speech and restores decision-making to the family in protecting minors from harm.     

The Regionalisation of Judicial Review: Constitutional Authority,Access to Justice and Specialisation of Legal Services in Public Law

Since April 2009 judicial reviews may be dealt with at regional centres and in Cardiff. This change significantly relaxed the hitherto highly centralised system of judicial review in England and Wales. The main aims were to improve access to public law redress by enabling cases to be listed and heard at the most appropriate regional location. Despite recognition of the need to improve regional access, fears exist that this reform will threaten the standing and authority of judicial review in this jurisdiction; that it will contribute to a fragmentation of judicial review and, in the regions, reduce the quality of public law adjudication, legal advice and representation. Drawing on an empirical study on the regional use of judicial review, this paper assesses these matters and considers the early effects of regionalisation on access to judicial review and the development of regional markets for legal services in public law.     

The United Nations Convention on the Rights of the Child and the Punishment of Children Under English Law – Public and Private Vices?

The punishment of children in the domestic sphere and in the public domain is an issue of concern for those with care of children or whose interests lie in the protection of children’s human rights. How children are treated when they are judged to have broken rules reveals fundamental approaches to the welfare of those who have yet to reach adulthood. The effect of the United Nations Convention on the Rights of the Child in respect of how children are punished, whether in the home or as transgressors of criminal law, may be examined through two distinct but linked spheres: the private and home life context of domestic or personal punishment, and the public domain of state punishment of children in terms of criminal responsibility under English Law. Both spheres reveal attitudes towards the rights of children which suggest how human rights are accorded to particular groups in applying international obligations to a state’s domestic provision. This article seeks to explore some issues of compliance with Article 19 (the physical chastisement of children), Article 37 (the imprisonment of children being a ‚last resort’) and Article 40 (the minimum age of criminal responsibility) of the United Nations Convention on the␣Rights of the Child. The application of the rights of children and the operation of the ‚best interests’ of the child in applying Articles 19, 37 and 40 suggests that there are issues in relation to non-compliance which indicate a diminution of the separate rights of children under English Law in particular and in the operation of the best interests of the child. Penny Booth is a Reader in Law at Staffordshire University Law School.     

权利冲突、相邻关系与义务理性

权利本质上是一种利益追求的工具,因此在现实中权利之间总是会存在这样或那样的冲突,法律规则的规范属性同样体现在对权利冲突的调整方面。在民法上,相邻关系规则是私法领域一项独立的专门针对权利冲突而设计的法律规则,其区别于地役权规则,也区别于物权请求权规则和侵权赔偿请     

Civil Litigation, Access to Government-Held Information, and Coordination of Public and Private Enforcement in the Czech Republic

To correct the historical suppression of environmental information under communist rule, the Czech Republic has instituted several new laws granting citizen access to government-held information. This access should facilitate civil litigation by providing evidence in court for establishing causality in a country where practically everyone feels the effects of broad and severe environmental degradation. However, poor de facto citizen access and citizens'; traditional distrust of information severely limits litigation activity. Similarly, this paper examines the joint use of a privately-initiated ex post liability policy (i.e., tort litigation) and a state-initiated ex post liability policy (i.e., penalties). In particular, it explores a potential exchange of information between a government enforcer and plaintiffs, where the government enforcer provides information on the causality of harm to plaintiffs and plaintiffs provide information on the level of harm to the government enforcer. With more accurate information on both causality and damages, the joint use of state and private enforcement should lead to more efficient outcomes. This paper finds great potential for such improvement given the limited use of privately-provided information on harm and poor de facto access to government-provided information on environmental matters.     

Friends,Enemies, or Strangers? On Relationships between Public and Private Sector Service Providers in Hybrid Forms of Governance

Hybrid forms of governance receive special attention in literature on regulatory reforms. It is often assumed that a combination of public and private sector involvement in a regulatory regime is superior to “pure public” or “pure private” regimes. By paying close attention to such hybrids, this article finds that hybrids have two key dimensions: first, the “amount” of public and private sector involvement in a hybrid, and second, the relationship between these sectors. Contrary to the former dimension, the latter hardly receives any attention in scholarship. This article addresses that knowledge gap. It introduces a typology of hybrids based on these two dimensions. A brief case study is introduced to discuss the value of the focus on relationships between public and private sector service providers.