从宪法角度看社会行动者对国家决定的影响

本文在通过分析社会、国家决定和宪法立法的概念,通过德国法学思想区分国家和社会两个概念的历史,在当代德国宪法确立的国家和社会相分离的基础上,讨论了社会行动者对国家立法、行政、司法三方面决定的影响,着重从规范和政治评价的角度,分析了与这些影响密切相关的机会和风险,表明宪法在维持机会和风险之间平衡具有不可或缺的地位。本文作者希望德国的经验对中国建设法治国家有所帮助。     

Improvisation and Negotiation: Expecting the Unexpected

Negotiators must improvise. As the negotiations process unfolds, they work with new information, continually making decisions along the way to achieve favorable results. Skilled improvisational jazz musicians and actors perform in similar ways: they repeatedly practice song chord progressions and notes or scene guidelines before a performance; then, during the performance, they work with the information or the music they hear in order to react and respond, making decisions along the way to produce dazzling music or a compelling scene. In this article, two experts in negotiation, a jazz-improvisation scholar, a former member of an improvisational theater troupe, and a psychotherapist versed in therapeutic improvisational techniques explore the improvisational nature of negotiation.
Several aspects of negotiation are similar to improvisation. Both negotiators and improvisational performers need to have a similar mind-set to be successful, both need to recognize and/or change that mind-set at times, and both must craft creative solutions. But there are some significant differences between improvisational performance and negotiation practice, which this article also notes. For example, personal charisma ("star quality") is a common attribute of successful performers, but not something negotiators may always rely on. Similarly, improvisational artists usually work as a team, while a negotiator is often on his or her own. Nonetheless, the incorporation of improvisation techniques into the negotiation skills repertoire holds great promise for practicing negotiators and is a worthy topic of future negotiation research and teaching.     

Intoxicated Consent in Rape: Bree and Juror Decision-Making

The article examines the recent Court of Appeal judgment in Bree, in which the court considered the guidance that should be given to a jury when the complainant is intoxicated at the time of an alleged rape. As well as analysing the reasoning of the court in Bree, the judgment is placed in context by examining factors, such as social attitudes, that influence juror decision-making in rape cases. It also examines the suggestion made by the court in Bree that further law reform in this area would represent 'patronising interference' in the lives of women.     

Indian spies inside Pakistan: South Asian human intelligence across borders

This article examines India’s historical efforts to spy inside Pakistan from the mid-1960s to the early 1970s. It draws from memoirs of notable Indian spies who were jailed for espionage in Pakistan and spy ‘fiction’ written by former Indian intelligence and military officers who allege their writing is based on actual cases. The article highlights commonalities among Indian spies using the words of Indian officers to better understand human intelligence efforts inside Pakistan. It finds that Indian spies in these books have initially been Hindus or from multi-religious families, from the Indian-Pakistan border and have been poorly treated by the Indian government and its intelligence services.     

Getting Their Way: Bias and Deference to Trial Courts

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to “get their way” more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.     

The Federal Antideficiency Act at 150—Where Do We Stand?

The Antideficiency Act of 1870 codified Congress's power of the purse to curb unauthorized agency spending. Is it still working? This paper analyzes all violations of the Act over 12 years by agency and type, causes and consequences, and how violations were detected. The number of violations has trended down slightly. While agency preventive controls have failed, detective controls are working. Employees and agencies are comfortable self‐reporting violations, which are neither pervasive nor material. The risk of violations increases during fiscal year transitions and periods of change. The Act remains effective at stopping unauthorized and overspending, but does not address wasteful spending.     

Responding to the environmental effects of remittances and trade liberalization in net-importing economies: the role of renewable energy in Sub-Saharan Africa

Economic Change and Restructuring - Little is currently known about how policy choices that seek to bridge the gap between low production capacity and growing consumption demands in developing...     

The Ongoing Reforms to China's Government and State Sector: The case of the energy industry

Though the reforms announced by the Chinese government in the spring of 1998 appear to be substantial and wide ranging, by themselves they may have little impact either on the effectiveness of government or on the performance of the state industries. Two outstanding problems are the structure and allocation of responsibilities within the government, and the excessive power of the state companies. The tasks of regulation and policy formulation in the energy sector should be clearly allocated in a simple administrative structure which specifically excludes any role for the state companies. The present structure of the state-owned energy industries is such that these companies have a great deal of power, not only in the market but also with respect to the government.