Strategic Lawsuits Against Public Participation: The British Columbia Experience

In 2001, the province of British Columbia (BC) became the first Canadian jurisdiction to enact anti-SLAPP legislation. While this legislation proved to be short lived, the BC experience around the issue of SLAPPs is instructive for law reformers both in Canada and beyond. In this article, the authors describe the legal and political processes that set the stage for the passage of the 2001 law, and its subsequent repeal. They also provide a detailed analysis and critique of key aspects of the debate surrounding the design of the law, and consider its efficacy in identifying, dismissing and deterring SLAPP lawsuits. They conclude with some observations with respect to the current status of the SLAPP issue in BC.     

The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA

Commentators have documented the disturbing use of the courtroom to silence those who speak out on important issues. Too often, parties resort to meritless lawsuits in response to another's free expression or communication with the government. These lawsuits are called SLAPPs, or Strategic Lawsuits Against Public Participation. In the USA, they have emerged as a significant threat to the rights of expression and petition guaranteed in the First Amendment to the US Constitution. A majority of the US States have passed 'anti-SLAPP laws', but there is no uniform protection. The model legislation outlined in this paper is intended to guide those who seek uniform, comprehensive protection against SLAPPs.     

Private Law and Public Stakes in European Integration: the Case of Property

Abstract:  In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those 'public' matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States' property systems, restated both in the TEC and in the draft Constitution, cannot be taken at face value, given the plethora of supra-national inroads into this field. But it performs the essential rhetorical function of reassuring national law makers that Europe will pay special attention to sovereign choices when harmonising those areas of private law which, like property, harbour an obvious core of constitutional values.     

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.     

公、私法性指导性案例的区分及其法源思考

目前,我国案例指导制度框架性机制已形成,学界研究将逐步从宏观制度建构层面转向具体法律适用领域。这一转向过程中,指导性案例类别化比较研究具有特殊意义。公、私法传统区分虽受质疑,但仍具有可信的法哲学魅力。公、私法性指导性案例体现的法理念及法解释学方法等方面的差异较为明显。在此基础上,以法与法律区分的自然法观对公、私法性指导性案例发现的法规则在法源领域的意义展开探讨,认为公法性指导性案例发现的法规则不具有法源意义,在公法适用领域,法与法律同义;私法性指导性案例发现的法规则可区分为两类,其中补漏性法规则具有法源意义,可通过立法论方式将其确立为我国民法法源之一,同时完善学者民法典草案建议稿中的法律适用条款。     

Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time

Has federal antidiscrimination law been effective in moving women and minorities into management? Early studies show that government affirmative action reviews improved the numbers, and rank, of blacks, but evidence of what has happened since 1980 is sparse. There is little evidence that civil rights lawsuits improved the employment status of women or African Americans. We examine establishment‐level effects of compliance reviews and lawsuits on the percentage of women and blacks in management. We find that compliance reviews, which alter organizational routines, had stronger and more lasting effects than lawsuits, which create disincentives to discriminate. We also find that deregulation was more consequential for compliance reviews than for lawsuits: Compliance reviews initiated in the 1980s were less effective than those initiated in the 1970s. Not so for lawsuits. Compared to lawsuits, compliance reviews appear to have a greater capacity to elicit lasting organizational change, but their effects are mediated by the regulatory environment.     

肖志军事件的法学追询——公私法关系论题的—个引子

多数学者认为肖志军拒签事件属于极端个案,不能说明法制不健全。其实,该案反映出我们的制度设计存在严重的问题,其要害在于公法规则在医患双方关系中不适当地设定了患者家属的主体地位与决定权。这种规定在理论上造成逻辑悖谬,在实践中不仅不必要,而且可能造成与立法预期相反的效果。在特定条件之下,取消患者家属的决定权,解除对医院紧急救治行为的强制禁止,则类似问题可迎刃而解。肖志军事件中所出现的问题其实是国家出于政策管制的需要而不适当地介入私法关系所导致的后果,它反映出我国公私法关系理论亟待深入研究。     

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.     

Public Reason,Science and Faith: The Case of Intelligent Design

Law and Philosophy - This article considers the justification of laws to religious citizens. It does via a consideration of the debate surround the teaching of Intelligent Design. It argues that...     

私人复制的著作权法制度应对：从机械复制到云服务

私人复制长久以来主要表现为手工抄写,因而立法对之一直未有专门的制度安排。随着复制设备及介质的家庭化,私人复制对著作权人利益的影响逐渐受到著作权法的重视,补偿金制度的创设,即是许多欧美国家针对私人复制的负外部性所作出的制度回应,但也有中韩等少数国家在合理使用制度之外并未构建补偿机制。实际上,本质为"庇古税"的私人复制补偿金制度并不能很好地回答其是否属于外部性理论"胡闹"的产物,该制度在具体适用中亦存在诸多实操难题,因此,我国著作权法长期以来应对私人复制的制度安排值得肯定。随着计算技术、互联网产业、云服务飞速发展,作品传播的供需两侧均与机械复制时代大相径庭。从市场原则出发来看,私人复制将更加没有"生存空间",因而补偿金制度已无构建之必要。刚刚完成修订的我国《著作权法》坚持了过去的正确选择,即使云服务时代仍会有零星的私人复制行为,现行立法也足以应对。     

Contract Governance in the EU: Conceptualising the Relationship between Investor Protection Regulation and Private Law

The instrumental use of private law, in particular contract law, by the EU raises a complex issue concerning the relationship between contract‐related regulation and traditional private law and underlines the need for conceptualising the interplay between the two from the contract governance perspective. The present article aims to apply this new analytical approach in the investment services field where there is considerable tension between the EU investor protection regulation embodied in the Markets in Financial Instruments Directive (MiFID I and MiFID II) and national private laws. The article explores various models of relationship between investor protection regulation and traditional private law within a multi‐level EU legal order, considering the strengths and weaknesses of each field in pursuing public and private interests involved in financial contracting. This analysis also offers some lessons for the broader narrative of how European integration in regulated areas dominated by public supervision and enforcement could proceed.     

Disability Income Insurance: The Private Market and the Impact of Genetic Testing

This article discusses the disability insurance industry in order to provide context regarding the potential impact of genetic testing on disability insurance. It describes disability income insurance, exploring both the protection it offers and its main contract provisions. It goes on to describe the private insurance market and the differences between group and individual insurance, and concludes with implications of genetic testing with respect to the private disability insurance market.     

自诉转公诉问题思考

对于被害人享有自诉权的案件,公安机关或检察机关在一定条件下将其转为公诉,这有利也有弊。从域外立法规定和司法实践来看,自诉转公诉主要是通过直接提起公诉、接管自诉或独立上诉三种方式来实现的,它与代为告诉、自诉担当既有区别又有联系。完善我国自诉转公诉制度既要借鉴域外先进经验,又要立足我国国情,注意该制度可能产生的弊端,增强该制度的可操作性。     

公权与私权的博弈:行政许可设定的法哲学思考

公权力与私权利的博弈现象贯穿于行政许可设定和运行的始终。本文从法哲学的角度 ,分析行政许可设定中公权力与私权利间的博弈现象 ,将这种博弈现象界分为 :行政权与公民权利的博弈 ;立法权与公民权利的博弈 ;立法权与行政权的博弈三种 ,并从法哲学的层面透视这一博弈现象的本质 ,提出只有协调好公权力与私权利的博弈关系 ,才能早日实现法治政府。     

Management-Based Regulation: Prescribing Private Management to Achieve Public Goals

We analyze a little-studied regulatory approach that we call management-based regulation. Management-based regulation directs regulated organizations to engage in a planning process that aims toward the achievement of public goals, offering firms flexibility in how they achieve public goals. In this article, we develop a framework for assessing conditions for using management-based regulation as opposed to the more traditional technology-based or performance-based regulation. Drawing on case studies of management-based regulation in the areas of food safety, industrial safety, and environmental protection, we show how management-based regulation can be an effective strategy when regulated entities are heterogeneous and regulatory outputs are relatively difficult to monitor. In addition to analyzing conditions for the use of management-based regulation, we assess the range of choices regulators confront in designing management-based regulations. We conclude that management-based regulation requires a far more complex intertwining of the public and private sectors than is typical of other forms of regulation, owing to regulators' need to intervene at multiple stages of the production process as well as to the degree of ambiguity over what constitutes "good management."     

Lawyers and Politics in France, 1814–1950: The State, the Market, and the Public

Throughout the 19th century, lawyers in France were deeply involved in political action to pursue an overriding goal–to become recognized as spokesmen for the public. This strategy governed their history; it explains their brilliant social ascent and their subsequent slow decline. As long as the conflict between state and civil society raged, lawyers were able to we assets–political mobilization, the power of the word, the esteem enjoyed by law–which had allowed them faithfully to embody public opinion in its struggle to limit state powers. From this embodiment of public ideals they derived independence, prestige, and a dominant position in the state. But when the nature of the political regime ceased to be a bone of contention and when public life became organized around other cleavages, lawyers were gradually deprived of their representative function. This marked the beginning of a social decline that became visible between the two world wars and lasted until the 1950s.     

公共治理困境与公法学的理性回应

公共治理是公共行政领域一种方兴未艾的模式,但公共治理不是万能的,也存在治理"失灵",存在政府"空心化",公共行政"能力赤字"、问责过程的复杂化、成本—收益计算模糊化、公众对政府的信任度降低等困境。公共治理不仅是一个政治学术语,也是重要的法学范畴,主要表现为公共治理以依法治理为前提,是公民参与、协商合作的持续互动,是追求平等、权利、尊严的过程。所以,面对公共治理的困境,法学策略显得尤为重要,应当彰显公共利益,树立有限政府理念,增强政府核心能力;厘清责任链,建立责任政府,加强非政府组织的责任承担能力;引入成本—收益核算机制,提高公共治理的效率;减少宪法规定的社会权种类,加强国家对民生的保障力度。