主权的比较视野:宪政在英国和美国

在此次纪念詹姆斯·麦迪逊演讲中,上议院议长,欧文·莱尔格勋爵评述了美国宪法至上和司法审查体制与英国不成文宪法强调无司法审查的议会主权具有许多共同之处。尽管这两个体系经常被认为是极端对立的,欧文勋爵指出其实二者都是在民主政治的背景下运作,且殊途同归,区分并联系着     

Policy and disparity: The punishment of infanticide in Britain and America

In the United States, studies of maternal infanticide (and female violent behavior in general) have been rare. Children represent about 35% of female perpetrated homicide victims and there is reason to believe that this number may be significantly higher based on estimates concerning SIDS deaths. Infants face a homicide rate approximately four times higher than that of the general population in much of the industrialized world. Infanticide has historically been relegated to the legal category of homicide in the U.S. This is significantly different than in most industrialized countries. This article argues that the lack of specific public, legal, and medical policy in the United States concerning infanticide results in random inequity of charges, dispositions, sanctions, and treatment of offenders. This situation is unnecessary as demonstrated by British and European legal systems, and is in direct opposition to the policy of minimizing disparity.     

The implementation of quality and safety measures: from rhetoric to reality

The evolution of American healthcare is the history of recurrent attempts to enhance quality of care. The latest wave of debate in this area was sparked by the 1999 Institute of Medicine Report, To Err is Human. In the current debate over how best to improve safety and quality, however, there has been a disconnect between the theoretical optimum and the practical possibilities. The author examines the history of our nation's efforts at healthcare improvement over the years, and concludes that the present debate will likely lead to improvements--but only after a messy (and necessary) political struggle over what price Americans are willing to pay for improvement, and where that money will come from. When reform occurs, the author believes that it will be on multiple levels, with accreditation organizations and various levels of government acting in the manner (and for the constituencies) appropriate to each. Ultimately, the political processes will yield a variety of approaches to be watched, studied, and amended as the healthcare system evolves to provide safer, more effective care.     

Heroin maintenance in Britain and heroin for the relief of pain in the United States of America

SUMMARY

The British themselves have recognized that heroin may not be the safest and most appropriate form of treatment for heroin addicts. The percentage of narcotic addicts in Britain being treated with methadone alone has risen steadily from 58% (of 1,549 addicts) in 1971 to 67% (of 2,588 addicts) in 1981. Also, the percentage of narcotic addicts receiving heroin alone has dropped from 7.1% (of 1,549 addicts) in 1971 to 2.6% (of 3,844 addicts) in 1981. The amount of heroin prescribed to addicts also fell from 22,778 grams in 1969 to 8,501 grams in 1978.

Further increases in the use of oral methadone and sterile injectable methadone, and resulting decreases in unsterile injections of heroin, would no doubt greatly diminish the incidence of death and severe disability in the treatment of British addicts.

On the issue of heroin's use for intractable pain, there is no evidence that heroin has unique advantages over other drugs. When given in equivalent doses, morphine has been proven to be as effective as heroin, orally or subcutaneously, for the relief of pain. In fact, heroin is rapidly converted into morphine in the body. Given the fact that heroin is the drug most narcotic addicts prefer, legally stocking the drugs in pharmacies, hospitals, and hospices would pose serious security and personal safety risks at these facilities. It is possible, in fact, that most pharmacies would refuse to stock the drug.     

The MCMI-III and the Daubert Standard: Separating Rhetoric from Reality

Law and Human Behavior -     

从制度修辞视角看法律信仰

法律能否被信仰?这是国内法学界近二十年来持续关注的一个重要理论争点。尽管法律信仰的理论有演化为意识形态的倾向,但法律信仰论自身是一种严谨的理论论述。法律信仰的论述理据,不应仅仅是伯尔曼所强调的法律与宗教在某种意义上的契合性或相似性,而且还在于即便完全不受宗教影响的、世俗化的法律,作为一种价值体系、传统、"事物规定性"的规范表达以及舍此无他的利益获取机制的内在禀赋。法律在实质上是基于价值、事实以及与此相关的利益的博弈结果或博弈的规范表述,是一种制度修辞。人们对一种制度修辞抱持不尽的热忱和追求,恰如人们虔信、又热忱地追求同样是一种修辞预设的上帝一样。所以,从制度修辞视角看法律信仰,饶有兴味——法律、法治本身是信仰的事业。     

The Politics of Appointment and the Federal Courts'Role in Regulating America: U.S. Courts of Appeals Judgeships from T.R. to F.D.R.

Historians and political scientists have noted that appointments of judges to the U.S. Courts of Appeals are not determined by senatorial courtesy alone. What has not been adequately explained is why and when a president defers to a senator's choice rather than seek to control the selection. This article attempts to understand the politics of federal appellate court appointments. The author first identifies a major change in the work of the courts of appeals during the years 1900-1945—the growth in review of the actions of newly created federal regulatory agencies. Then, by examining Justice Department files and presidential correspondence, he discoveres three patterns of appointment emerging in the same period. The patterns vary with presidential perceptions of the role of the federal government and of the courts of appeals' ability to affect accomplishment of administration goals. Appointments during the first years of the presidencies of Theodore and Franklin Roosevelt and during the Harding and Coolidge administrations were dominated by patronage concerns. Those administrations yielded to the recommendations of senators and demonstrated no interest in the policy-making potential of these courts. In the two other patterns the White House played a more active role, with senators more often deferring to the president's selection. Concerns about professionalism dominated selections in Taft's and Hoover's administrations: because they recognized the policy importance of those judgeships but saw the role of government as limited, they sought judicial craftsmen who would make policy only incrementally. Policy concerns dominated selections during Wilson's administration and the latter years of both the Roosevelts' administrations: Justice Department officials screened nominees to determine their policy orientation, because federal appellate court judgeships were perceived as crucial policy positions that could affect the president's ability to implement his reform programs.     

The rights of people with an intellectual disability in The Netherlands: from restriction to development

The purpose of this article is to discuss whether the right to self-determination is the only and the best principle in health law for care providers to support their clients with an intellectual disability, or whether other principles such as the right to development, the right to good care and the right to protection might lead to a better protection of the rights of clients in this field of care. The right to self-determination is the central principle in the Dutch Psychiatric Hospitals (Compulsory Admissions) Act, which at times seems less than beneficial to the legal position of persons with an intellectual disability. The question is whether a new (alternative) legal framework, in which the focus shifts to the right to good care and the right to development, might improve the legal position of people with an intellectual disability.     

Convergence Between Europe and America: The Transition from Industrial to Innovation Policy

Traditionally, the U.S. and Western Europe have chosen different policies to foster commercial innovation. Whereas (federal) government intervention in the U.S. has required strict justifications and has been mainly indirect, most governments on the other side of the Atlantic have played an explicit and more active role in the economy. However, recent developments indicate a convergence between Europe and America, both in type of policy measures and their legitimation. Within a framework of risk profiles and a typology of justifications, we examine several U.S. and European programs (Etzkowitz, 1997). We find that the main reason for convergence in policy agendas and measures seems to be an incorporation of perceived missing links in the innovation systems in response to reciprocal competitive pressures. Hence, the federal government is aiming to play a more direct role in the U.S., while the university sector and technology transfer becomes increasingly integrated in European innovation policies.     

Rehabilitation in the Punitive Era: The Gap Between Rhetoric and Reality in U.S. Prison Programs

Scholars of mass incarceration point to the 1970s as a pivotal turning point in U.S. penal history, marked by a shift toward more punitive policies and a consensus that “nothing works” in rehabilitating inmates. However, while there has been extensive research on changes in policy makers' rhetoric, sentencing policy, and incarceration rates, scholars know very little about changes in the actual practices of punishment and prisoner rehabilitation. Using nationally representative data for U.S. state prisons, this article demonstrates that there were no major changes in investments in specialized facilities, funding for inmate services–related staff, or program participation rates throughout the late 1970s and the 1980s. Not until the 1990s, more than a decade after the start of the punitive era, did patterns of inmate services change, as investments in programming switched from academic to reentry‐related programs. These findings suggest that there is a large gap between rhetoric and reality in the case of inmate services and that since the 1990s, inmate “rehabilitation” has increasingly become equated with reentry‐related life skills programs.     

20世纪90年代以来英国犯罪预防理论与实践

20世纪90年代以来,英国犯罪预防主要体现在以下三个密切相关的策略,它们分别是情境犯罪预防、多机构协作犯罪预防和社区犯罪预防。在犯罪防控的全球化背景下,当代英国犯罪预防理论与实践的发展正在成为世界各国犯罪预防改革的发展方向。其可资借鉴之处主要体现在以下三个方面：一是立法上的支持;二是人力上的支持;三是政府的财政支持。     

Legal Rights and Political Realities: Governmental Responses to Homelessness in Britain

This article presents a "contextual" study of Britain's Housing (Homeless Persons) Act 1977. The article addresses the ostensibly perplexing policy question of why Britain's homeless population has almost trebled in the H years since the homelessness legislation was introduced. The answer is found by subjecting the legislation to a very wide-ranging contextualization process. Rather than simply focusing on the administrative arena in which the act is implemented, the article seeks explanations for its apparent ineffkacy in ideological considerations preceding its enactment, in the legislative process itself, in the (im)precise wording of the emergent statute, and in subsequent government policies in various relevant constitutional and social policy areas. The article concludes that a thorough understanding of the impact of this particular law requires it to be located in a series of interrelated contexts, a conclusion that might plausibly be extended to all studies of "law in society."     

国外高校安保制度的比较及借鉴——以英国、美国、加拿大、瑞典、日本、新加坡为样本

在欧美国家的高校安保制度当中,以美国、英国、加拿大、瑞典最具代表性。英国的高校安保制度主要由驻校警察模式、法令特别授权警察模式和安保外包模式这几种类型构成;美国则是典型的校园警察模式为主导;加拿大的高校安保系统采用校园社区警务模式;而瑞典的高校安保模式则呈现出"行政化"和"社会化"的特征。在亚洲邻国的高校安保制度当中,以日本、新加坡最具代表性。这当中,日本以"青少年警察"的安保模式为主,而新加坡的高校的安保主要由安全、健康和环境办公室和校园保卫办公室以及外包保安公司三者构成。借鉴国外高等教育发达国家的高校安保制度对我国新时期的高校安保制度意义重大。     

From coercion to deception: the changing nature of police interrogation in America

Our police, with no legal sanction whatever, employ duress, threat, bullying, a vast amount of moderate physical abuse and a certain degree of outright torture; and their inquisitions customarily begin with the demand: If you know what's good for you, you'll confess. (Ernest Jerome Hopkins, 1931)¹ Today, Ness Said, interrogation is not a matter of forcing suspects to confess but of conning them. Really, what we do is just to bullshit them (William Hart, 1981)² There is an interesting irony at work here: restrict police use of coercion, and the use of deception increases. (Gary Marx, 1988)³ In both popular discourse and academic scholarship one continually encounters references to the tradition-bound police who are resistant to change. Nothing could be further from the truth. The history of the American police over the past 100 years is the history of drastic, if not radical, change. (Samuel Walker, 1977)⁴ A longer version of this paper was presented at the Annual Meeting of the American Society of Criminology in November, 1991.