理想图景与正义问题——《中国法学向何处去》读后

通过对中国法学自1978年以来26年间的这一个时代的批判,邓正来提出了一种以社会秩序的建构及其正当性为核心问题的中国法律哲学观,其任务是建构一种"中国法律理想图景".以"中国法学向何处去"为主题的系列论文,不仅强调了世界结构是这种法律哲学观的历史性条件,还隐含着建构"中国法律理想图景"必须考虑的三类正义问题.     

法律推理中的法律理由和正当理由

法律推理具有逻辑方法和审判制度的双重属性,它的发展经历了一个从前者向后者的演进过程。法律推理是一个综合运用法律理由和正当理由的法庭决策过程。法律解释作为该过程的一个环节,是以正当理由阐释法律理由而获得法律推理大前提的手段。     

后疫情时代共享用工的可持续发展及法律规制

共享用工是疫情冲击下企业的跨界自救之举,但因我国人力资源供求的不平衡、企业用工成本的增加、劳动人口数量减少及劳动态度转变、共享用工第三方平台的崛起等原因,其在后疫情时代依然存在常态化的可持续发展空间。共享用工实现了输出方企业劳动力闲置与输入方企业用工荒的对接,提高了人力资源配置的灵活性及使用效率,但也存在着界定及表现形式不确定、法律关系模糊化的问题,同时劳动者、劳动力输出方、输入方甚至第三方亦面临潜在法律风险。因此,要促进共享用工的规范化发展,必须从政策和法律层面双管齐下,完善其制度建设,并建立包括监管部门、行业协会、共享用工平台在内的一体化规制体系。     

Identifying the Causes of Issue Attention and Policy Change: Evidence from U.S. Offshore Oil and Natural Gas Drilling Policy, 2008

The flow of attention in the policy process is dynamic and disruptive. While we know changes in issue attention often result in policy change, the causal mechanisms underlying the different stages of the attention allocation process remain unclear. This article uses Punctuated Equilibrium Theory to examine an underdeveloped aspect of issue attention within policy‐making institutions: how specific policy indicators influence the entry and exit of issues on policy‐making agendas. Partisan issue attention in the House of Representatives is used to analyze a significant change to U.S. offshore oil and natural gas drilling policy in 2008. The results highlight how historically high gasoline prices precipitated a shift in attention to offshore drilling and subsequent policy change. Moreover, gasoline prices Granger‐cause attention to energy policy in partisan speeches over time. The analysis further reveals how competing policy frames and a salient focusing event shaped congressional and public discourse, leading to subsequent changes in attention. Taken together, the findings broaden our understanding of the policy process by identifying the specific forces behind the entry and exit of issues on the policy‐making agenda.     

Congressional Attention and Opportunity Structures: The Select Energy Independence and Global Warming Committee

This article examines the role that overlapping committee jurisdictions play in fostering or hindering attention to environmental and energy issues in the U.S. Congress. The Select Energy Independence and Global Warming Committee, created by House Democrats in 2007 , and its chairman Rep. Ed Markey took advantage of opportunities within the existing jurisdictional arrangement to increase attention to these issues despite lacking any legislative authority. Data from the 110th and 111th Congresses show that the Select Committee held more hearings on climate change and alternative energy, and on environmental and energy policy generally, than any other committee. The committee also increased the range of sources informing debate on these issues by calling different witnesses than other committees. These findings have important implications for the relationship between institutional structure and agendas and for Congress' policy‐making role on energy and the environment.     

Projecting the Arena of Inclusion: The Case of South Korea in Pursuing a Phased Inclusive Growth Process

South Korea created a mechanism that fuels inclusive growth, a process that coevolves economic growth and social well‐being. This study attempts to elaborate on the context and preconditions for development that would manifest salience policy implications for moving up the industrial value chain and attain inclusive growth. We contend against the view of simplified growth cum equity that is used to elucidate the success of Korea's socioeconomic development (economic miracles). Our findings informed us that there were intense measures taken throughout different phases of Korea's industrial development. In addition, we observed in many occasions intense negotiations between the state, firms, and civil society for social welfare and a better working environment. This led to a pursuit for inclusive growth in the post catching‐up phase that blended together many inclusive agendas, realizing growth that coevolved industrial upgrading and social welfare. This article seeks to explain how Korea populated its arena of inclusion in the process of pursuing rapid industrialization. The overview of different phases of development provides normative principles that are useful as a guide for other economies which aspire to attain similar development.     

The Formal Delegation of Regulatory Decisions in the Telecommunication Sector: An Explanation Using Classification Trees

Research on regulation has traditionally focused on studying the delegation of regulatory competencies from political principals to an independent regulatory agency. In this article, we argue that this delegation is nuanced by different factors that affect whether a specific regulatory decision is formally delegated. We examine and explain formal delegation patterns at the level of individual regulatory decisions in twelve countries located in Europe, Latin America, and South Asia. The data were gathered by coding the twelve countries' telecommunications legislation. The data analysis was undertaken using a classification tree model—a nonparametric model. We found that the maturity of the market has the greatest effect on the formal delegation of regulatory decisions, but this effect is also influenced by the other theoretical factors considered, particularly the level of political constraints and the type of regulation.     

The Space Between: Demonization of Opponents and Policy Divergence

Prior research on policy conflicts indicates a tendency among policy actors to misperceive the influence of actors engaged in policy debates based on the degree of distance between their relative policy positions. This research develops a measure for assessing the degree and direction of the misperception effect. This measure is then utilized as a dependent variable to assess the relationship between theoretically relevant factors and the degree to which actors will exaggerate the influence of their opponents and allies. The research uses original survey data of policy actors engaged in the debate over hydraulic fracturing in New York. The results indicate misperceptions of relative influence are prevalent and most associated with the experience of a policy loss and holding relatively extreme policy beliefs. The findings provide new insight into factors that influence the demonization of political opponents. These insights are timely in the context of polarized debates over environmental and energy policy in the United States.