Distributional Conflicts and the Timing of Environmental Policy

This paper examines the timing of adopting a policy for tackling an environmental issue such as climate change from a viewpoint of distributional conflicts. A dynamic game of providing public goods (Alesina and Drazen, American Economic Review 81(5), 1170–1118 (1991)) is applied to the argument, modified by including abatement costs as well as the loss in the environment. In this framework, even if the immediate adoption of environmental policy is socially optimal, a disproportionate burden of pollution reduction leads to a delay in policy adoption. This is because the disproportionate burden increases the gain from waiting for each individual hoping that the other will agree to bear the heavier burden. The impact of income distribution on the timing is also examined. The level of averting behavior is assumed to depend on the level of income. If the distribution of income is more dispersed, the regional disparities in environmental degradation become larger because the poor tend to avert less and get more loss than the rich due to their tighter budget constraints. Under asymmetric information on damages, as the disparities in income become more dispersed, each individual expects that his/her opponent’s damage becomes severe; then, he/she gives in first. Thus, each individual holds out longer so that the timing of policy implementation is delayed further. Finally, the theoretical result is empirically tested by both probit and discriminant analyses to examine whether income distribution has an impact on the timing of ratifying the Kyoto Protocol in practice.     

环境影响评价制度中公共利益与个人利益的冲突及衡量

伴随着中国经济的迅速发展以及城市化进程的加快,环境问题尤其是污染项目环境影响评价和环境行政许可引发的利益冲突日益显现,已成为备受关注的社会热点问题。环境影响评价制度中的公共利益与个人利益都需要保护,如何进行衡量至关重要。在分析环境影响评价制度中公共利益与个人利益内容和冲突原因的基础上,阐明利益衡量原则和方法,提出了完善环境影响评价制度利益衡量机制及对策。     

Using Private-Public Linkages to Regulate Environmental Conflicts: The Case of International Construction Contracts

The article takes a pluralistic view of the 'trade-environment' conflict by exploring one of the settings of this conflict: the lex constructionis – international construction law. It seeks to unravel the way in which the unique structural-cultural attributes of this legal domain have affected its environmental (in)sensitivity. The article's main argument in that context is that the contractual tradition of the lex constructionis (as manifested in the standard contracts that dominate this field) and its unique institutional structure, have created a culture of ecological indifference. This culture has important practical consequences because of the deep ecological problematic of international construction projects. The article develops an alternative contractual model, which depicts the construction contract as a semi-political mechanism, rather than a private tool. This conceptual change seeks to break the public/private separation that characterizes the contractual discourse in the international construction market. The article explores, further, whether this alternative contractual vision could be realized in practice, and proposes several implementing modules which could further this goal. While the article explores a particular international regime, its methodology and conclusions – in particular, the political-constitutional interpretation of the contract and the critique of the public/private dichotomy (see sections III.3 and III.4) – should be relevant to the regulation of many other (national or international) environmental dilemmas.     

Public Participation in Environmental Regulatory Conflicts: Treading Through the Possibilities and Pitfalls*

Based on two years of qualitative field work, this paper examines public participation in environmental regulatory disputes. Drawing on political economy critiques of environmentalism, we argue that regulation is both a political arena and a legal process that is about responsivity, competition, and bargaining. A combination of case study and Boolean algebra techniques are used to refine and apply the conceptualization. Five primary factors are identified which mediate citizens' participation: (I) information networks, (2) social resources, (3) cooperative linkages, (4) the ability to sustain linkages and levels of resource mobilization over time, and (5) agendas which fit within the narrow constitutive norms of a particular regulatory community.     

风险社会理论范式下中国“环境冲突”问题及其协同治理

伴随着环境危机的加剧以及环境群体性事件的频发,环境冲突已成为学术界研究的热点。在风险社会治理范式下,我国环境冲突的风险表现为现实风险和潜在风险。其中现实风险包括健康风险、灾害风险以及经济风险,而潜在风险表现为由环境冲突中的不确定因素所引发的政治、法律以及国家安全的影响和后果。而在当前,我国环境冲突的社会风险呈现出从可能性向现实性转变的态势,因而必须在风险理论的指导下,运用多元主体共同参与公共事务的协同治理模式,通过推进行政改革、构建公众参与机制以及完善法律制度等手段,发挥政府的主导作用和公众的主体作用,提升并保障协同治理的实效与健康运行。     

Conflicts of Justifications

Law and Philosophy -     

人民监督员制度的正当性与有效性质疑

人民监督员制度的监督客体是人民检察院的具体司法业务,如果强化这一制度不免会陷入个案监督的困境.根据<最高人民检察院关于实行人民监督员制度的规定(试行)>,人民监督员的角色实际上是"检察顾问",因而改革的意义也就只停留在政治意义上.人民民主的正当性并不能提供人民监督员这一制度的正当性.即使强化这一监督制度,也因为程序的安排而不产生监督的效益.并且,因为人民监督员制度的设立是建立在监督者道德自律的基础上,并衍生出新的"谁来监督监督者"的问题,因而也就表明这一制度与法治的要求并不相容.     

论仲裁管辖权冲突

仲裁管辖权冲突涉及仲裁与法院两种管辖权的冲突和不同仲裁机构之间的管辖权冲突。在处理仲裁与法院两种管辖权冲突时,国际上的通行做法和我国实践均支持仲裁管辖优先的原则;在处理不同仲裁机构之间的管辖权冲突时,应按遵循当事人意愿原则,根据具体情况予以分别处理。     

Challenging Executive Dominance in European Democracy

Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far‐going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents – even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro‐active and networked role of parliaments – both national and European – as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.     

Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure

Practically speaking, the peremptory challenge remained an inviolate jury selection tool in the United States until the Supreme Court's decision in Batson v. Kentucky. 476 U.S. 79 (1986). Batson's prohibition against race-based peremptories was based on two assumptions: (1) a prospective juror's race can bias jury selection judgments; (2) requiring attorneys to justify suspicious peremptories enables judges to determine whether a challenge is, indeed, race-neutral. The present investigation examines these assumptions through an experimental design using three participant populations: college students, advanced law students, and practicing attorneys. Results demonstrate that race does influence peremptory use, but these judgments are typically justified in race-neutral terms that effectively mask the biasing effects of race. The psychological processes underlying these tendencies are discussed, as are practical implications for the legal system.     

医疗纠纷案件的法律冲突

在目前法律框架下解决医疗纠纷仍然存在一些问题,甚至也出现一些医患双方矛盾激化倾向,究其原因是多方面的。本文对当前医疗纠纷法律、法规之间的冲突进行分析,并结合实践中的个案加以阐述。以期引起社会各界重视。     

Conflicts of Rights and Action-Guidingness

In this paper, we raise two points. First, any rights-based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define which right should prevail, but without considering non-rights-interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously.