Government‐operated public broadcast stations and candidates' access to political debates

Under the Communications Act's equal opportunity requirement and FCC interpretations of that provision, licensees can choose which political candidates to include in a broadcast debate. However, a 1994 decision by a federal appellate court has clouded the ability of public broadcast stations licensed to government entities to exclude particular candidates. According to the court, such stations, as a form of state action, generate a limited First Amendment right on the part of candidates to demand inclusion in a broadcast debate. This article examines the unique constitutional questions raised by the court's decision. An assessment of the competing rights and interests of candidates, stations licensed to government entities and the public indicates that such stations should provide access to political debates.     

Pleading the Fifth: Media Economics,Free Air Time and the Fifth Amendment

Some public interest groups use the concept of "free air time"-regulation compelling television stations to provide free advertising time for federal candidates-to advance the cause of campaign finance reform. The purpose of this article is not to rehash arguments over whether the First Amendment prohibits such legislation but rather to examine a newer direction of inquiry through the Fifth Amendment "takings" clause. Although takings arguments have been dismissed by many due to the "public interest" standard to which broadcasters are held and public ownership of the spectrum, this article uses tenets of media economic theory to show that free air time could indeed constitute a "taking." What is at issue is not the use of the spectrum, but rather access to an audience: economic property created and sold by broadcasters.     

The development of technical and spectrum requirements for meeting federal, state and local public safety agency communication requirements through the year 2010, establishment of rules and requirements for priority access service--FCC. Final rule

The Federal Communications Commission (Commission) adopted a First Report and Order ("First Report") contemporaneously with a Third Notice of Proposed Rulemaking that is summarized elsewhere in this edition of the Federal Register. In the First Report, the Commission amends its rules relating to public safety communications in the 764-806 MHz band ("700 MHz band") that the Commission previously reallocated for public safety services and in general. This action commences the process of assigning licenses for frequencies in the 700 MHz band and addresses an urgent need for additional public safety radio spectrum and the need for nationwide interoperability among local, state, and federal entities. By this action, the Commission also takes additional steps toward achieving its goals of developing a flexible regulatory framework to meet vital current and future public safety communications needs and ensuring that sufficient spectrum to accommodate efficient, effective telecommunications facilities and services will be available to satisfy public safety communications needs into the 21st century.     

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.     

临时性许可上升的法律问题——透视地方人大及其常委会的立法和监督职权

地方人大及其常委会在做好涉及临时性许可的政府规章上升为地方性法规工作时,首先要正确理解行政许可法的立法原意,“一年”的期限是地方政府就临时性许可提请地方人大及其常委会启动立法程序的期限;同时还要主动把握立法权限和时机,对临时性许可的合法性和合理性进行“再审查”,切实履行人大的立法和监督职责。     

Elected Bodies: The Gender Quota Law for Legislative Candidates in Mexico

In the past decade, 21 countries have adopted gender quota laws that require between 20% and 50% of all legislative candidates to be women. What explains the adoption of these laws? I argue that three factors make politicians more likely to adopt gender quota laws. First, electoral uncertainty creates an opportunity for internal party reform that factions within a party can exploit to their advantage. Second, the courts play an important role because of the centrality of the issue of equal protection under the law to gender quotas. Finally, cross‐partisan mobilization among female legislators raises the costs of opposing such legislation by drawing public attention to it. I examine these three claims with regard to Mexico, where the federal congress passed a 30% gender quota law in 2002. I'd give up my seat for you if it wasn't for the fact that I'm sitting in it myself. —Groucho Marx (quoted in Abdela 2001) [Many Latin American countries] have ‘homosexual’ political systems, that is, the power of the political parties and the state is in the hands of only one of the sexes.… —Line Bareiro, Paraguayan feminist (Bareiro and Soto 1992, 11)     

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.     

美国高校信息公开研究

美国在信息公开立法和实践均走在世界前列,高校信息公开也不例外。美国高校有关信息公开的法律涉及联邦法、州法、高校规章制度和法院判例。原则上公立高校及其内部机构都适用信息公开法律;区分一般信息、涉及个人隐私的信息以及与高校特殊性质有关的高校自治和同行评议等学术信息,公开的属性、对象和方式均不相同。我国高校信息公开应当借鉴美国经验。     

Public Broadcast Stations' Exclusion of Candidates from Debates: A Step Toward Political Independence?

Government-operated broadcast stations are in an anomalous situation in their continuing struggle for political independence. Not only must government stations meet the informational needs of their audiences, the stations must address the market-induced failures of commercial broadcasting. Controlling their programming is one facet of meeting these obligations. Nevertheless, government stations have been accused of violating the First Amendment when they have exercised their editorial discretion to exclude candidates from debates sponsored by the stations. This article explores political candidates' rights of access to debates in light of a United States Supreme Court decision that held that government stations may use subjective criteria to exclude candidates from debates. Although the Court's decision reinforced government stations' First Amendment rights to exercise editorial discretion, the decision did not significantly advance public broadcasting's struggle for political independence.     

A Peek into a Future Filled with Climate Change Regulation

The recent federal presidential election and Democratic majority in Congress assure that federal legislation to address climate change will be enacted. The nature and extent of future federal climate change regulation cannot be predicted. But, climate change regulation will be in our future. In the absence of federal regulation, regional associations and states have taken action on their own to reduce carbon emissions and address climate change. The Western Climate Initiative (WCI) is a regional association that is developing a detailed climate change program. New Jersey is one of the states which has passed, and is now implementing, legislation to address climate change. By evaluating the WCI and New Jersey activities regarding climate change, one can develop an understanding of the major issues, some possible options for dealing with those issues, and the impact climate change regulation will have on the economy, energy issues, and everyday living.     

Compulsory Licensing in Canada and Thailand: Comparing Regimes to Ensure Legitimate Use of the WTO Rules

This paper examines two recent examples of compulsory licensing legislation: one globally embraced regime and one internationally controversial regime operating under the same WTO rules. In particular, we consider Canadian legislation and the use of compulsory licensing for HIV/AIDS drugs destined for a developing country. This is then contrasted with the conditions under which Thai authorities are pursuing compulsory licenses, the outcomes of their compulsory licenses, as well as the likely impact of the Thai policy. Finally, we construct a rubric to evaluate characteristics of a successful regime. This is used to analyze the Canadian and Thai regimes and frame the expected implications of each national policy. It is hoped that the assessment will guide changes to compulsory licensing design to ensure that legitimate regimes are embraced while illegitimate ones are disallowed.     

Aligning National Bank Priorities with the Public Interest: National Benefit Banks and a New Stakeholder Approach

Banks have particular characteristics that set them apart from other business entities, including being more highly leveraged, benefiting from government safety nets, and generating massive negative externalities when they fail. These attributes mean that in addition to shareholder interests, bank directors should be allowed to carefully consider the interests of nonshareholders, such as creditors, taxpayers, and the overall economy, when making decisions. While directors of banks in states that have enacted constituency statutes may be allowed to consider nonshareholder interests, no federal act expressly allows directors of federally chartered banks to consider such interests. Moreover, to date, thirty‐seven states have enacted legislation to allow for the formation of public benefit corporations that require directors to consider the interests of nonshareholders. No federal law provides a clear path for federally chartered banks to do this. This article proposes dual federal legislation that would (1) enable directors of all federally chartered banks to expressly consider nonshareholder constituents when making decisions and (2) allow for the formation of national benefit banks that would require directors to consider nonshareholder interests in their decision‐making.     

The meaning of “the public interest” in communications policy—part II: Its implementation in early broadcast law and regulation

For more than a half‐century, as the cornerstone of federal broadcasting and telecommunications policy, the public interest standard has always been subject to some debate. Questions have regularly been raised about its meaning and the extent of the authority it implies for regulation, particularly in the deregulatory environment of the 1980s and 1990s. Part I of this study demonstrated how a deep reading of the pre‐broadcasting state and federal regulatory history reveals that interpretations of the public interest standard that have emphasized broad, diverse, public service programming have entailed a misunderstanding of its real, underlying meaning. This part of the study shows how another definition—i.e., that the public would be best served by protecting economic viability and technological advancement for private industry broadcasters—developed as the predominant doctrine before adoption of the Radio Act of 1927 and Communications Act of 1934, and how that theme came to be the applied interpretation of the public interest during the first two decades of broadcast regulation.     

Compulsory Licensing for Cable Television: A Report

Abstract

[This Report was prepared by the Committee on Entertainment and Sports Law of the Bar Association of the City of New York (the “Committee,” hereinafter). It addresses specific legislation pending before the Ninety-Seventh Congress¹ as well as substantial public policy issues involving existing and potential grants of special statutory exemptions and compulsory licenses in the Federal Copyright Act (17 U.S.C. $101, et seq.).]     

The development of technical and spectrum requirements for meeting federal, state and local public safety agency communication requirements through the year 2010, establishment of rules and requirements for priority access service--FCC. Proposed rule

The federal Communications Commission (Commission) adopted a Third Notice of Proposed Rule Making ("Third Notice") contemporaneously with a First Report and Order ("First Report") that is summarized elsewhere in this edition of the Federal Register. By its Third Notice, the Commission makes a range of proposals and seeks comment relating to public safety communications in the 746-806 MHz band ("700 MHz band") and in general. The Commission invites comment on how to license the 8.8 megahertz of 700 MHz band spectrum designated as reserved in the First Report and on whether to directly license each state or use a regional planning process to administer the nationwide interoperability frequencies (2.6 MHz of spectrum designated in the First Report) pursuant to the national interoperability plan to be established by the National Coordination Committee. The Third Notice also discusses protection requirements for the Global Navigation Satellite Systems and offers proposals to facilitate use of nationwide interoperability in public safety bands below 512 MHz. Finally, because many of the automated and intelligent machines and systems on which public safety entities depend for their operations were not designed to take into account the date change that will occur on January 1, 2000, the Commission also seeks comment on how best to ascertain the extent, reach, and effectiveness of Year 2000 compliance initiatives that have been or are being undertaken by public safety entities, to better understand the nature of the Year 2000 problem and the potential risks posed to public safety communications networks. This action addresses an urgent need for additional public safety radio spectrum and the need for nationwide interoperability among local, state, and federal entities. By this action, the Commission also takes additional steps toward achieving its goals of developing a flexible regulatory framework to meet vital current and future public safety communications needs and ensuring that sufficient spectrum to accommodate efficient, effective telecommunications facilities and services will be available to satisfy public safety communications needs into the 21st century.     

Plant Closings and Public Policy: Achieving an Optimal Level of Plant Closings

A severe problem confronting the Northeast portion of the United States has been the closing of plants. In making the decision to close a plant, firms tend to consider private benefits and costs. However, there are significant external costs to the community and workers which an appropriate public policy should require firms to consider. The law has dealt with the plant closing issue in several ways, including the collective bargaining process through the National Labor Relations Act, court challenges, and state and local legislation. This study examines each of these and concludes by calling for comprehensive federal legislation.     

The Failure of Defamation Law to Safeguard against SLAPPs in Ontario

The authors examine the failure of the law of defamation in Canada to reflect changed realities with respect to public participation in decision-making processes and the impact that this has had on Strategic Lawsuits Against Public Participation (SLAPPs) in the Ontario context. They examine the enhancement of the public's substantive and procedural rights to participate in environmental decision-making processes reflected in legislation at the international, federal and provincial levels. They argue that SLAPPs threaten to reverse these shifts in norms in the development of public policy. The authors review anti-SLAPP legislation as well as the evolution of defamation law in Canada and other jurisdictions and conclude by offering some law reform recommendations for Ontario.     

Attorney general’s task force on violent crime--1981 three recommendations for legal reform in the criminal justice system

In the spring of 1981 Attorney General William F. Smith appointed a Task Force on Violent Crime with the assignment to report to him concerning specific ways in which the federal government could do more to assist in controlling violent crime without limiting its efforts against organized crime and white-collar crime. The Task Force submitted their final report which contained 64 recommendations. Three of the recommendations concerned the insanity defense, the exclusionary rule and habeas corpus actions.The purpose of this paper is to consider each of these three subjects with regard to their effect on national policy concerning the criminal justice system. In addition each recommendation is discussed with regard to the current status of the law in these areas and proposed congressional legislation on each subject. Further, where applicable, state legislation and federal and state judicial decisions relating to each subject are identified and discussed.In addition to legislation and judicial decisions, selected articles, text books, newspapers, news magazines, and statements by government officials were also utilized as resource material in preparing the article.The Task Force recommended a new option concerning the insanity defense, that of guilty but mentally ill. Concerning the exclusionary rule the Task Force recommended a good faith exception to the rule. With regard to habeas corpus actions, the Task Force recommended several procedural changes including a statute of limitations and a “cause and prejudice” requirement to support federal habeas corpus action. This article supports the recommendations of the Task Force and concerning the insanity defense and exclusionary rule suggests that both should be abolished.     

社会性别的法律建构及其批判

性别等级是在人类社会进化的过程中,主要由男权文化不断解释与不断塑造的结果,社会性别这一概念是探求这一原因最好的分析工具。原初社会"男耕女织"的性别分工成为家庭关系与公共关系的分野。在公共关系中,男人在自利心的驱使下渐生平等的要求,并在平等诉求下形成法律;而在家庭关系中因为亲情而使平等与公正成为多余。由于女性并未参与公共关系中的法律建设,致使性别平等既不能在公共领域中得以表达,也不能在家庭关系中得以体现。最终,法律认同了公共领域与私人领域的划分,并在这一基础上建构起了性别等级的社会模式。而代表男权文化的法律理论也极尽"科学"之能,不断地掩盖和强化性别社会化的实质,尤以社会契约论为最。社会契约论以法律为公民同意之结果而使法律披上了公正的面纱,却因为无视女性没有成为契约主体的事实而沦为掩盖社会性别的帮凶。即便是罗尔斯的"无知之幕"理论也因为无法排除性别的先天知晓而成为法律平等与公正的神话。虽然,实证主义法学与自然法学在许多理论问题上存在着针锋相对的观点,但在制造并掩盖社会性别上也成了同盟军。法律与法律理论的紧密联系与有机配合终于迫使社会性别及其等级模式在法律中立的旗帜下不断地得以演绎、建构和强化。     

Policy Innovation or Vertical Integration? A View of Immigration Federalism from the States

Since 2005, state legislatures have passed hundreds of immigration bills, and state officials have argued that their efforts attempt to solve immigration crises caused by federal inaction. The state–federal clash over immigration seems to confirm scholarship suggesting deepening lines of conflict in the federal system since the 1990s. The question remains, however, whether this explosion in state immigration laws signifies a move by states to tailor their own solutions to immigration issues. This article explores whether states are serving as laboratories of innovation for immigration policy. The study analyzes over five hundred immigration bills passed between January 2006 and December 2008, and engages in a comparative analysis of three immigration policy areas (immigration law enforcement, employment regulations, and drivers' licenses) where there exist varying degrees of state autonomy from national policy and thus distinctive possibilities for states to offer creative approaches to immigration issues. The findings suggest little evidence of policy innovation at the state level, although a handful of states are challenging federal supremacy in immigration matters.