Rule‐Making by the European Financial Supervisory Authorities: Walking a Tight Rope

The new European Financial Supervisory Authorities have received much attention in the literature, particularly due to their exceptional emergency decision‐making powers. By contrast, this article explicitly chooses to focus on these agencies' less explored yet equally crucial role: their (quasi‐)rule‐making responsibilities. While being less striking at first sight than their emergency counterparts, these rule‐making powers are considerable, carry significant consequences, and raise some interesting dilemmas and concerns. This article complements the previous contribution by going at a lower level of specification and zooming in on a crucial case for studying rule‐making by agencies as the Authorities constitute a culmination of agency rule‐making powers, as well as agency powers, more broadly. The article will analyse the Authorities' main (quasi‐)rule‐making powers and the relevant procedures. It will specifically investigate their role with respect to the adoption of regulatory and implementing technical standards, as well as guidelines and recommendations. The article also identifies and highlights a set of problematic issues that arise, threatening to jeopardise the legitimacy and credibility of their rule‐making.     

Regulating Complex Contracting: A Socio‐legal Study of Decision‐Making Under EU and UK law

The article evaluates interview data on decision‐making under public procurement law using Halliday's analytical model on compliance with administrative law. In this study, unlike other studies on administrative compliance, the decisions faced by public bodies are not routine; they relate to the award of complex, high‐value contracts. Two contrasting decisions in the procurement process are discussed: the decision over the choice of procedure at the outset of the process, and the decision over the extent to which the public body should negotiate with the winning bidder towards the end of the process. The article considers the rationales behind decisions, and finds that, although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.     

National Support for Film Production in the EU: An Analysis of the Commission Decision‐Making Practice

This article deals with the cultural welfare concerning cinema, a medium capable of both painting and shaping society. It aims to investigate the impact of the European integration on national film promotional law, by studying the European Commission decision‐making practice in the field of State aid to cinematographic works. The analysis shows that this practice can be understood in two main phases that are delineated by the adoption of specific criteria. These criteria are explored by highlighting the most elucidating cases. Furthermore, this analysis discloses two relevant conflicts: within the Commission itself and between the Commission and the Member States. Particular emphasis is placed on the latter, which is explored with regard to: the European national film agencies' polarisation of the conflict, the main form of dispute settlement adopted by the Commission, and the legal obligations imposed by Member States upon TV broadcasters to invest in audiovisual 1 production. The analysis ends with an evaluation of the above‐mentioned impact and a few remarks on some unresolved issues related to the conflict between the Commission and the Member States.     

A taste of its own medicine: Assessing the impact of the EU Better Regulation Agenda

This article performs an ‘impact assessment’ of the EU Better Regulation Agenda. It considers whether there is a clear definition of the problems that the EU Better Regulation seeks to address, the evidence base, whether Better Regulation more effectively responds to those problems than alternative options, and what the costs, benefits and broader impacts of the the Agenda may be. The analysis suggests that while the Better Regulation Agenda generally promotes an open yet rational decision‐making process based on sound problem definitions and aiming at targeted solutions calibrated for optimum efficiency and effectiveness, some of its own problem assumptions remain unproven, it possesses contradictory traits and risks being counter productive. Furthermore, while EU Better Regulation may have benefits, it also entails significant costs that should not be overlooked. This assessment reveals the complex and multifaceted nature of EU Better Regulation, and the need to hold it to its own standards.     

Women Legal Academics – A New Research Agenda?

Women academics have been the subject of suprisingly little academic research; this is particularly true of women legal academics. This article argues that it is important that research into women legal academics is carried out, not just to gain empirical evidence about the working lives of these women, but because in exploring these members of the 'academic tribe' of lawyers, important insights may be gained into the university as an institution, the development of law as a discipline, and the nature of law itself.     

公务员创新行为:文献述评与研究展望

创新行为俨然成为公务员适应新时代高素质干部队伍建设要求的典型行为模式,以及公共部门适应职能转变和服务再造要求的内生动力。本研究基于对已有研究的系统梳理与深入分析,构建了一个系统的公务员创新行为研究框架。本研究从公私部门成员创新行为差异及争议切入,围绕公务员创新行为的概念内涵、多层次影响因素及复杂作用机制进行系统回顾并展开评述,呈现新制度主义理论、自我决定理论等在公务员创新行为塑造中的深层逻辑。在此基础上,本研究展望未来方向:(1)以回应跨国文化背景、科层制组织特征、现实工作场景实现公务员创新的情境化研究;(2)在新时代中国场景中实现公务员创新行为的量表开发、跨层次系统性形成机理探索;(3)拓展公务员创新行为的效能机制研究,实现微观层面行为创新与中观层面组织创新、宏观层面政策创新的呼应衔接。     

Constitutionalising the Market,Marketising the Constitution,and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law

Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law—whichever model of the social market economy it is thought to embody—and is best abandoned.     

Evidence Based EU Criminal Policy Making: In Search of Matching Data

EU criminal policy making is a relatively new policy domain and its credibility is said to be undermined by the lack of an evidence base. Because the EU claims to pursue evidence based policy making, this justifies reviewing the mechanisms put in place to that end. To properly evaluate the evidence base in EU criminal policy making, an assessment is made of the availability of comparable crime statistics. Crime statistics, a vital data source for criminal policy making, are considered highly problematic at EU level due to (amongst other reasons) the differences in the definition of the offences. In spite of the good intentions that can be read into the repeated acknowledgement of the importance of crime statistics and the efforts to commonly define EU worthy offences, a thorough empirical analysis leads to the conclusion that we are still in search of valid EU level data with respect to the EU level offences. The EU as a policy maker does not take its responsibility to ensure the availability of the necessary comparable crime statistical data serious enough.     

Performing Arts Entrepreneurship: Toward a Research Agenda

Starting from the position that performing arts entrepreneurship (PAE) deserves its own theoretical treatment in the literature, this article addresses fundamental questions within that subfield. The first step is to define PAE, necessarily incorporating the related concepts of “The Performing Arts Event Cycle” and the “Performing Arts Value Chain.” The question of why PAE takes place explores the motivations of performing arts entrepreneurs, looking beyond the traditional profit motive. Where PAE occurs is the next question, taking into account audiences, financial resources, available performance venues, and artistic inputs. The final two questions have to do with the timing of PAE, as well as who engages in this activity. Relevance to existing and future research is discussed, as are implications for practice.     

Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making

Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision‐making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non‐state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.     

Repeated Eyewitness Identification Procedures: Memory,Decision Making,and Probative Value

Two experiments examined the effects of multiple identification procedures on identification responses, confidence, and similarity relationships. When the interval between first and second identification procedures was long (Experiment 1), correct and false identifications increased, but the probative value of a suspect identification changed little; consistent witnesses were more confident than inconsistent witnesses; and the similarity relationships between suspect and foils were unchanged. When the interval between first and second identification procedures was short (Experiment 2), suspect identification rates changed little, but foil identifications increased significantly; confidence for all identifications increased; consistent witnesses were more confident than inconsistent witnesses; and similarity relationships changed such that witnesses were less likely to identify the suspect as being the best match to the perpetrator.     

Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making

Common law judges have traditionally been concerned about bias and the appearance of bias. Bias is believed to threaten the administration of justice and the legitimacy of legal decision‐making, particularly public confidence in the courts. This article contrasts legal approaches to bias with a range of biases, particularly cognitive biases, familiar to scientists who study human cognition and decision‐making. Research reveals that judges have narrowly conceived the biases that threaten legal decision‐making, insisting that some potential sources of bias are not open to review and that they are peculiarly resistant to bias through legal training and judicial experience. This article explains how, notwithstanding express concern with bias, there has been limited legal engagement with many risks known to actually bias decision‐making. Through examples, and drawing upon scientific research, it questions legal approaches and discusses the implications of more empirically‐based approaches to bias for decision making and institutional legitimacy.     

Expediting Permanency through Community Decision‐Making

Permanency for children has taken on a renewed urgency since passage of the Adoption and Safe Families Act of 1997. This article describes the process of building a community approach to using alternative dispute resolution for expediting permanency, and reports on the initiative's progress to date. Expediting Permanency through Community Decision‐Making, a U.S. Department of Health and Human Services‐funded demonstration project, is simultaneously building community collaboration around the specific issue of permanency and establishing alternative dispute resolution models as a key component of permanency planning services. Lessons learned from implementation are instructive for others embarking on a community response to the demands of ASFA.     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

The Transposition of EU Law: ‘Post‐Decisional Politics’ and Institutional Autonomy

The transposition of European Union (EU) law into national law is a significant part of the EU policy process. However, political scientists have not devoted to it the attention that it deserves. Here, transposition is construed as part of the wider process of policy implementation. Drawing on implementation theory from the field of public policy, the article outlines three sets of factors (institutional, political, and substantive) that affect transposition. Second, the article examines the manner in which eight member states transpose EU legislation, and identifies a European style of transposition. An institutionalist approach is employed to argue that this style is not the result of a process of convergence. Rather, it stems from the capacity of institutions to adapt to novel situations by means of their own standard operating procedures and institutional repertoires. It concludes by highlighting (a) the partial nature of efforts at EU level to improve transposition, themselves impaired by the politics of the policy process and (b) some ideas regarding future research.