Social Policy and Sexual Offenders: Contrasting United States' and European Policies

This article contrasts US and European social policies with regard to sexual offending. The three waves of social policy which are discernible in the United States' history (sexual psychopath laws, the focus on the domestic sex crimes under the influence of feminism, and a renewed attention towards sexual predators) are first described. The most significant policy trend at present concerning sex offences focuses on government controls after release. The broad overview of European countries' solutions to the same problems, concentrates on the contrasts and similarities between Europe and the United States. At present, the United States and parts of Europe are both focused on ways to increase public protection from sex offenders, particularly in ways outside the context of the criminal law. The harm caused by sex offences, in combination with the persistent nature of some patterns of sex offending, has caused citizens and governments to push for specialised remedies and powers.     

论美国联邦宪法的程序规则

美国联邦宪法规定了完备的程序规则制度,为规范权力,保障公民权利奠定了坚实的基础。美国宪法的哲学原理见之于其繁复的权力运行程序细节之中。宪法的程序规则具有权力的正当化功能、规范化功能和形式合理化功能。作为宪政基石和宪政基本内涵的法治,是一种以正当程序为主要内容的人们服从规则治理的过程,而法治的正当程序则以宪法程序为根本。     

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting-point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism

This paper argues that the relationship between law and politics must be reconfigured within the European Union. Dissecting recent crises in economic, social and political organisation within Europe with reference to the three ‘fictitious’ commodities of Karl Polanyi, we find that law in Europe has contributed to de‐legalisation, de‐socialisation and disenfranchisement. Moving on to review the potential for law to respond to crisis through new paradigms of conflict resolution as suggested by Ralf Dahrendorf, we find that the steering capacity of law is nevertheless limited if it fails to establish a sustaining relationship with politics. Our conclusions are modest: conflict–law constitutionalism cannot solve Europe's many crises. However, it does represent a new paradigm of law within which relations between European law and European politics might be re‐established—a vital step to overcoming crisis.     

The Creation and Transformation of Regional Parliamentary Assemblies: Lessons from the Pan-African Parliament

This article analyses the genesis and recent evolution of the Pan-African Parliament (PAP), one of the key institutions of African integration. Based on theories relating to the European Parliament, it argues that the dynamics surrounding the establishment of the PAP result from a blend of internal and external factors. On the one hand, the decision to create a PAP can be traced back to the problems of the Organisation of African Unity and to the will of African leaders to revive Pan-Africanism. On the other hand, the establishment and design of the PAP are partially inspired by international precedents such as the European Parliament. Over and above this observation, which is informed by the theory of mimetic institutionalism, the existence of regular interactions between Europe and Africa and, more generally, the outward activities of the PAP, would seem propitious to the self-assertion of this institution. Ultimately, the objective of the article is to lay the ground for a more ambitious theory of regional parliamentary assemblies.     

Technology transfer between the U.S.A. and Europe

The premise is that technology gaps have an important impact on the economic life of nations and also have political consequences. Expressions of concern about the technology gap between Europe and the United States have become steadily less frequent in the recent years. The purpose of this paper is to find out whether some of the lessons that can be drawn from the European technology gap of the '60s contribute to the understanding of the present United States-European technology exchange controversies. This is accomplished by (1) reviewing the European arguments, (2) trying to find out how revelant they have proven to be after a few years, (3) investigating better ways to assess the impact of technological differences with reference to current United States arguments about technology export, and (4) attempting to derive some conclusions on policy implications of transferring technology. It was concluded that important policy decisions have been made and are still being made by technology importing countries with little analytical background on the cost and advantages of achieving a technological capacity. In addition, policy decisions by technology exporting countries are most likely to be made with little knowledge of the real phenomena involved.     

The transformative nature of the EU Declaration on Digital Rights and Principles: Replacing the old paradigm (normative equivalency of rights)

In December 2022 the European Commission, the European Parliament and the Council of the European Union jointly signed the European Declaration on Digital Rights and Principles, a document aiming to steer the EU digital agenda upon EU constitutional values and fundamental rights. Digital constitutionalism scholars regard the Declaration as a positive step forward within the process of constitutionalization of the digital environment in Europe. The Declaration includes both traditional rights enshrined in the EU Charter of Fundamental Rights and digital principles. Some of these principles have progressively underpinned the EU digital policy framework while others have been expanded in the Declaration or are of completely new formulation. In this contribution, we assess the Declaration's value in terms of relevance and novelty within the landscape of protection of online needs and interests in the EU. By assessing the Declaration's normative approach and using Lawrence Lessig's distinction between codifying and transformative constitutional regimes, we evaluate the Declaration's progressive and transformative character under a constitutional perspective.     

The economic constitution and the political constitution: seeking the common good in the post-national setting

In the post-national setting, the concept of the ‘economic constitution’ has been seen as design template and saviour; whether based on transactional certitude or founded on ordoliberal precepts, the economic constitution is assumed to legitimate economic integration across national borders in the absence of comprehensive political settlement. Nevertheless, recent tensions – not only within the European Union (EU) but also, more strikingly, within the World Trade Organization context – indicate the limits of economic constitutionalism. This article seeks to identify the roots of recent dysfunction within the history and theory of economic constitutionalism. It traces the evolution of an adjudicational economic constitutionalism and its place within the EU legal order, including the new EU Charter of Fundamental Rights, and contrasts this vision with the more comprehensive and/or socialized models of economic constitutionalism found not only within the Weimar Republic but also within the post-revolutionary/post-conflict constitutional context. The article also places a major emphasis on theorizing around the apex of economic-constitutional thought, ordoliberalism, but concludes that no concept of the economic constitution can be seen in isolation from its social-political context, or from notions of the common good. To this exact degree, failures in modern economic constitutionalism may derive from a misplaced universalism – a technocratic absolutism that abdicates political responsibility for the common good, locating it instead in an ‘idolatry of the factual’ or a new naturalism of market inevitability.     

Study on the standard components of digital forensics laboratory

Recently, digital forensics has become increasingly important as it is used by investigation agencies, corporate, and private sector. To supplement the limitations of evidence capacity and be recognized in court, it is essential to establish an environment that ensures the integrity of the entire process ranging from collecting and analyzing to submitting digital evidence to court. In this study, common elements were extracted by comparing and analyzing ISO/IEC 17025, 27001 standards and Interpol and Council of Europe (CoE) guidelines to derive the necessary components for building a digital forensic laboratory. Subsequently, based on 21 digital forensic experts in the field, Delphi survey and verifications were conducted in three rounds. As a result, 40 components from seven areas were derived. The research results are based on the establishment, operation, management, and authentication of a digital forensics laboratory suitable for the domestic environment, with added credibility through collection of the opinions of 21 experts in the field of digital forensics in Korea. This study can be referred to in establishing digital forensic laboratories in national, public, and private digital forensic organizations as well as for employing as competency measurement criteria in courts to evaluate the reliability of the analysis results.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

Regional Trade Agreements and the Neo-Colonialism of the United States of America and the European Union: A Review of the Principle of Competitive Imperialism

The recent proliferation of Regional Trade Agreements (RTAs) in the last two decades raises questions about the paradigm shift from the multilateral trading system of the World Trade Organization (WTO) to bilateral and regional preferential trade arrangements. Even more questionable is the fact that the United States of America (USA) and the European Union (EU), among the other trading powers of the world, are leading the use of RTAs to the detriment and neglect of non-discriminatory trade liberalisation. It has been suggested that neo-colonialism may be the motivation for the use of RTAs by the USA and the EU as their international trade policy of choice within a broader competitive process for imperial domination of their preferential trading partners. This article reviews this suggestion in order to propose an alternative explanation for the RTA practice of the USA and the EU.     

Temperance and the origins of the new penology

This article discusses the nineteenth century origins of indeterminate sentencing and discretionary penology. Was this idea an offshoot of contemporary positivist criminology, emanating from Europe, or was it a separate development in the United States? It is argued that although European influences were felt, the “new penology” was clearly an American product. However, it did not derive either from new insights in social science, or from simple reforming zeal. Rather, the new penology is seen here as an outgrowth of the contemporaneous temperance movement, which in turn resulted from social and ethnic conflict. The article suggests that the temperance movement was central to the evolution of discretionary penology, and crucial in keeping these ideas alive until the new positivism made itself felt. In summary, the temperance movement is seen as a vital, through understudied, force in the evolution of the twentieth century justice system in the United States.     

THE FAILURE OF COMPETITIVE ENTRY INTO FIXED-LINE TELECOMMUNICATIONS: WHO IS AT FAULT?

Between 1998 and 2003, dozens of companies entered newly liberalizedtelecommunications markets in OECD countries. In Europe andNorth America, most of the entrants that attempted to use incumbents'"unbundled local loops," at regulated wholesale prices, to offernarrowband services—essentially "plain old telephone service"—havefailed. Even though Europe, the United States and Canada liberalizedat different times and with somewhat different policies, excessiveentry occurred in each region with too many players chasingan illusive pot of revenue with poorly designed business plans.On the other hand, the use of unbundled or shared local loopsfor entry into broadband services may be more of a winning strategybecause it allows the entrant to compete for customers by offeringnew services. This appears to be the emerging broadband strategyin Europe of large ISPs owned by incumbent telecommunicationcompanies in other countries (for example, France Telecom'sWanadoo) and in Japan. However, such entry has not worked inthe United States, where new companies, such as Covad, havefailed to develop profitable operations.     

宪政基因概论——英美宪政生成路径的启示

宪政基因是具有历史传承性的 ,能够引起宪政产生并决定其性质与发展方向的基本的社会因素。英美宪政之所以能率先生成并成为其他国家的学习典范 ,一个至关重要的原因是英美社会中较早地生成了个人权利诉求、政治权力多元和法律至上的宪政基因。这些基因是宪政产生及发展的原始动力 ,体现为宪法中的人民主权、基本人权、分权与制衡以及法治等原则。缺乏宪政基因的东方国家 ,最重要的是在社会上有意识地移植和培养这种基因 ,否则即使制定了宪法 ,也未必能够很好地实施。     

The challenge and imperative of private sector cybersecurity: An international comparison

Attacks on computers and information networks, both public and private, are disclosed in the news daily. Most recently, Apple, Facebook, and Twitter acknowledged that they were attacked and were now taking additional measures to secure their networks. In January of 2013, Kaspersky Labs reported discovering malware that not only targeted government information in Eastern Europe, former Soviet republics, and Central Asia, but also had been actively doing so since 2007. The scope of global cyber attacks is staggering and the solutions to securing property and protecting national security are illusive, in large part because infrastructure is owned and operated by private, rather than public, entities. Nations struggle with choosing the most effective strategy and potential regulation of the private sector in order to reduce overall cybersecurity risk. This paper reviews the nature of cyber threats, and compares the United States and European approach to promoting cybersecurity in the private sector. Furthermore, the paper discusses how different approaches can affect cybersecurity risk, and suggests a framework for visualizing the impact of law and strategy on security.     

The Constitution-Making Process in Poland*

The process of constitution making in Poland since 1989, and the content of the two draft constitutions prepared separately by the Sejm and the Senate are described in this paper. The relatively weak sense of constitutionalism in Poland's tradition is commented on and compared with the role of judicial review by the courts and constitutional tribunals in the United States and Europe. The latter part of the article discusses the role of the Church, the civil society, the unions and voluntary associations in constitution making and in the post-Communist society in general.     

The Waning of Legality in the Concept of Policy Implementation

The study of "implementation" has become a favorite subject of policy sciences in recent years. In part, this interest has been stimulated by the disappointments of the "great society program" in the United States in the sixties where goals formulated at the program level very often were not implemented. In the context of European constitutional thinking, the topic gains an ideological-critical emphasis. For those who believe in the reality of normative theories of separation of powers, it comes as a surprise that though political goals may be determined at the policy-formulation level, it is at the implementation stage where decisionmakers have a full range of possibilities to fulfill or to displace such goals. Concepts similar to "policy" and "implementation" (which are untranslatable in German legal language) have nevertheless been implicit in theories claiming a tendency to replace "conditional," compliance-oriented laws with goal-oriented legislation. To the degree that executive agencies become less strictly bound by precise legal rules and more by goal-oriented policy programs, they seem to lose legal legitimacy. This has to be replaced by increasing responsiveness at the implementation phase, which can be enhanced institutionally through participation, or what we might call the "democratic legitimacy of implementation."     

Emergent patterns in the regulation of pharmaceuticals: institutions and interests in the United States,Canada, Britain,and France

Although industrialized nations regulate pharmaceuticals to ensure their safety and efficacy, they balance these concerns with those related to the timeliness of the approval process and the burdens involved in meeting regulatory criteria. The United States, Canada, Britain, and France have adopted different approaches to the regulation of pharmaceuticals that place varying emphases on these competing goals and involve the participation of private interests to different extents. The regulatory approval processes and the government-industry relationships inherent within them are compared in the United States, Canada, Britain, and France by analyzing five features that distinguish the U.S. pluralist from the European corporatist approaches to policy development: representation (internal versus external), process (closed versus open), stance (informal, accommodative versus formal, adversarial), institutional power (fragmented versus centralized), and resources. An institutional framework further characterizes these approaches as based on models of managerial discretion and adjudication (United States), consultation (Canada), and bargaining (Britain, France) to clarify the patterns that emerge. While the approach that most effectively supports product safety involves managerial discretion as occurs in the United States, formal mechanisms for negotiation might be incorporated rather than a reliance on the judicial process. In an era of globalization and regulatory harmonization such divergence has significant implications. First, where harmonization in Europe involves the mutual recognition of one country's product licensing decision by the others, differences in evaluative processes remain important. Second, as harmonization leads to a common set of regulatory criteria, the criteria adopted tend to be those of nations with the least stringent regulatory standards, making evident the need for more responsive systems of post-market surveillance to protect the public interest.