Privatization and the boundaries of judicial review

Abstract: Can a public authority avoid public law requirements, such as an obligation to act fairly, by “contracting out” the performance of its functions? In Société de l'assurance automobile du Québec v. Cyr, the Supreme Court of Canada said “no,” but it did not explain how far the Court will move the boundaries of judicial review to adapt to the growth of the private role in governance. However, there is reason to believe that the Court is moving towards a functional approach in defining state power and the location of the boundary between public and private law. This promises to be more coherent and effective than the piecemeal functional approaches that have emerged in the United States and the United Kingdom. A functional approach will prevent the lines of legal accountability to Parliament, the legislatures, the electorate and the courts from being severed by a contract between a public authority and a private party. At the same time, the emerging functional approach accepts that public law remedies should generally not be available if private law offers an adequate remedy or if applying public law would generate disproportionate costs to efficiency or would damage other public law objectives or private interests.     

Visibility and facticity in policy diffusion: going beyond the prevailing binarity

Quantitative-oriented diffusion studies, either focused on diffusion patterns or mechanisms, take for granted that policy adoptions are manifest and therefore directly observable in the legislation. A more nuanced perspective of policy adoption taking into account gradual differences between adoption and non-adoption is proposed with this paper, valid for diffusion among communities and states in federal settings and among countries on the global level. Besides the aspect of visibility, intentions are also important when measures are adopted. While some measures are transferred with a clear instrumental aim, others are rather transferred for symbolical reasons. Looking at specific processes, the paper proposes a concept that disentangles the current understanding of policy diffusion and provides empirical evidence that current diffusion research misconceives instances. The four different transfer types are illustrated with empirical evidence from sub-national energy policy-making in Switzerland. The systematic investigation of the cases allows to finding explanations for the different transfer types.     

Integrating biodiversity: a longitudinal and cross-sectoral analysis of Swiss politics

Policy Sciences - The effective conservation and promotion of biodiversity requires its integration into a wide range of sectoral policies. For this to happen, the issue must receive attention...     

Conflicting Images? Germany and the Rise of China

While Germany's ‘Chinapolitik’ under Chancellor Gerhard Schröder was driven by economic interests, Angela Merkel promised a normative turn in foreign policy toward China. This apparent turn became most visible in 2007 when she met with the Dalai Lama, which caused strong diplomatic protest from Beijing. This article asks whether Germany's foreign policy toward China did in fact shift under the leadership of Angela Merkel. Based on cognitive approaches, especially image theory, the perception(s) of China held by Chancellor Merkel and their impact on German foreign policy toward China are analysed. The findings suggest that the dominant image of China is that of a key trade partner on whom Germany's economy is increasingly dependent with little emphasis given to the political or normative discrepancies between the two countries. The article argues that Sino-German relations under Merkel appear to be more one-dimensional than the fall-out over the Dalai Lama issue suggests.     

Die Entwicklung des Föderalismus und der Föderalismus ‐ diskussion in der Schweiz von 1874 bis 1964

Before 1874 and after 1964, the evolution of federalism and related political discourses is well known. Between these years, however, stretches a terra incognita, which this political‐historical essay tries to explore. This period was characterised by a steady shift of power from the Canton's to the Confederation, resulting in the frequent re‐grouping of federalists and centralists. Before the First World War, traditionalists from central and occidental Switzerland fiercely defended a confederalist vision. During the interwar years, things quietened down. The modern federal State organisation was no longer fundamentally questioned, and the debate focused on technical questions. The “geistige Landesverteidigung” (moral defence of the country against fascism) secured an enduring yet problematic place for federalism in Swiss culture by transforming it into the “unity in diversity” principle. After the Second World War, modernising forces resulted in the “executive and co‐operative federalism” that we know today.     

Broadcasting Regulation and Building the Multicultural Canadian Nation: Understanding the CRTC's Al-Jazeera Arabic Decision

The Canadian Radio-Television and Telecommunications Commission provoked extensive debate in 2004 when, in a seminal decision, it approved controversial and popular satellite television network Al-Jazeera Arabic for Canadian distribution. While the broadcast regulator's decision placed what some consider onerous responsibilities on potential Al-Jazeera carriers, others argue that given past egregious incidents of abusive speech on the network, it should not have been approved at all. This article accounts for the policy and regulatory context in which the Al-Jazeera decision is situated and the factors leading to the decision. The article argues that in proscribing abusive speech on the airwaves, the regulator locates freedom of expression within the context of a mandate to ensure that the Canadian broadcasting system makes a tolerant, multiethnic and multicultural Canadian nation imaginable.