Participation in welfare legislation—A poverty-aware paradigm

Public participation, responsive regulation, and other policy formulations are intended to draw governments down from their ivory towers and into engagement with the people. However, they paint at best, a hazy picture of who “the people” are. This superficial representation is felt, among other collectives, by people living in poverty, who not only face hunger, often accompanied by poorer health and lower life expectancy, but whose social exclusion typically goes unrecognized by the authorities. The legal framing of poverty—and, as a result, states' policy approaches to its alleviation—focuses on the material core, representing a very thin conceptualization that fails to address the social dimension. Furthermore, practical avenues for incorporating citizens' views into lawmaking—which might enrich understanding—are lacking when it comes to people in poverty. Combined with a blatantly hegemonic stance, the resulting ignorance around poverty and “the poor” generates welfare laws that are woefully out of touch with reality, and legislative thinking that perpetuates, rather than alleviates, poverty. This paper seeks to make a twofold contribution: (i) to demonstrate this situation with a deep empirical inquiry into the legislative process of one legal provision within the Israeli welfare law regime, juxtaposed against qualitative field-research findings and (ii) to introduce the inventive and groundbreaking “poverty-aware” paradigm, constructed in social-work discourse, to illuminate and explain the empirical findings and point to potential procedural–institutional reform, to pave the way for poverty-aware legislation.     

行政立法不作为研究

所谓行政立法不作为,是指特定行政立法机关未依照上位法的规定,未尽到合理的立法责任,在合适时间以合适的方式或者程序,展开立法创制、修订或废止活动的行为。行政立法不作为危及了公民、法人或者其他组织的权益以及社会公共利益,行政立法机关因此应该承担相应的法律责任。在控制行政立法不作为上,应该强化授权行政立法规则的完善以及妥当地处理好立法裁量权的使用,并加强行政自制、各级人民代表大会常务委员会和社会公众对立法不作为的监督。     

What's wrong with the back of the envelope? A call for simple (and timely) benefit–cost analysis

Observers across the ideological spectrum have criticized benefit–cost analysis for as long as it has been part of the rulemaking process. Still, proponents and detractors agree that analysis has morphed into a mechanism often used by agencies to justify regulatory decisions already made. We argue that a simpler analysis of more alternatives conducted earlier in the regulatory process can resuscitate it as a tool to inform policy. Recognizing that requiring a procedure does not ensure that regulators will follow it, we offer possible remedies, including strengthening or relaxing subsequent review of proposed rules, which raise the cost of circumventing the reform or lower the cost of following it.     

Understanding State Rulemaking Processes: Developing Fracking Rules in Colorado,New York,and Ohio

Rulemaking is an integral component of environmental policy at both the federal and state level; however, rulemaking at the state level is understudied. With this research, we begin to fill that gap by focusing on rulemaking regarding the issue of hydraulic fracturing (fracking) in three states: Colorado, New York, and Ohio. This policy issue is well suited to begin exploring state‐level rulemaking processes because the federal government has left fracking regulation to the states. Through semistructured interviews with a range of actors in the rulemaking process across these states, we establish a foundation from which future research in this area may build. This exploratory research yields some valuable insights into the roles different stakeholders are playing in regulating fracking in these three states, and our findings may be useful for explaining state‐level rulemaking more generally.     

美国法上的行政协议及其启示——兼与何渊博士商榷

行政协议是现代行政领域解决跨部门与跨地区行政合作问题而出现的新形式,为世界各国所采用;但其法律性质是什么,各国理论界与实务界的观点并不太一致。美国对行政协议的关注旨在探究行政协议的本质及其制定如何能够合法,而中国则侧重于强调其契约性,并未对行政协议的内容进行程序性规制。那种认为行政协议就是行政契约的观点值得商榷,该观点并未全面揭示行政协议的本质,这对于从法律上规制行政协议,使其充分发挥功效是不利的。     

RULEMAKING POSSIBILITIES: EFFORTS OF THE UNITED STATES JUDICIAL CONFERENCE ADVISORY COMMITTEE ON EVIDENCE RULES TO ADDRESS THE CHALLENGES TO FORENSIC EXPERT TESTIMONY

This piece is an echo to one of the main subjects of the Sixth International Conference on Evidence Law and Forensic Science which is to determine what evidentiary reforms are necessary for regulating forensic expert testimony, and how those reforms might be implemented. In United States, the predominant way of evidentiary reform is through rulemaking. As the Reporter of Judicial Conference Advisory Committee on the Federal Rules of Evidence since 1996, the author, with a pragmatic spirit throughout the article, examines such an effort at the federal level of U.S. in six parts (levels), starting from the most general, abstract level till finishing with the most detailed and substantive points. Part I begins with a brief introduction of the hierarchies of evidentiary rulemaking authorities at the federal level of the United States, various interested groups and their interesting interactions in the rulemaking process. The author then shifts to the general topic of writing rules with a specific focus on the level of detail that is to be provided in doing so; Part II further narrows down the scrutiny into writing a rule on forensic expert testimony with an emphasis on the necessity of making such a rule change to the current general standards of FRE; Part III directly addresses the challenges of drafting a rule on forensic evidence in FRE, including a comparation of various alternative drafting models; Part IV and Part V respectively discusses the Reporter’s comments and the Justice Department’s concerns over the drafted rules; and Part VI briefly discusses the feasibility and effectiveness of a Best Practices Manual on forensic evidence in lieu of rulemaking.     

What Happens When Rules Stay the Same? Examining Changes in Implementation Intent over Time

Rules are dynamic entities whose implementation is shaped by context, resources, and institutions. Variations in this implementation influence the functionality and effectiveness of rules. While the last decade has seen considerable scholarship on the determinants and effects of ineffective and effective rules, less is known about how rule implementation evolves over time. Particularly, what are the factors that influence administrative implementation intent over time? This study uses interview and archival data to examine administrative implementation intent of a single rule over a 25-year period. From qualitative data analysis, propositions are developed to explain why, although the text of the rule remained nearly the same, administrative intent of implement changed drastically.     

Stakeholder governance of organ transplantation: A desirable model for inducing evidence-based medicine?

Medical governance should secure and apply appropriate expertise, accommodate stakeholder interests, and promote social values. The most common form of governance, public (agency) rulemaking by government agencies, usually involves supplementing in-house expertise through advisory committees. An alternative, private (stakeholder) rulemaking, involves delegating the authority for developing rules directly to stakeholders, who often command relevant expertise, including that arising out of tacit knowledge. The possible advantages and disadvantages of agency and stakeholder rulemaking in medical governance can be assessed both from what we know about these forms in general and from experience with a prominent example of stakeholder rulemaking; that is, governance of the US organ transplantation system. It appears that this governance has been exceptionally successful in promoting evidence-based medicine. The stakeholder role in the governance of transplantation could be replicated in other areas by creating meaningful stakes to engage stakeholders and by increasing isolation from legislative politics through an independent funding source and circumscribed oversight.     

Regulatory Analysis Procedures and Political Influence on Bureaucratic Policymaking

Well‐known theories suggest that administrative procedures may be used as mechanisms of political control of the bureaucracy. This study investigates whether three common regulatory analysis procedures—cost‐benefit analysis, risk assessment, and economic impact analysis—lead to greater influence by political officials on bureaucratic policymaking. Multivariate analyses of data from a unique survey of state administrators indicate that regulatory analysis requirements are associated with decreases in the perceived influence of elected political officials on the content of administrative rules. This association is particularly evident in cases where proposed rules are subjected to a cost–benefit test. These findings contradict prominent theories of administrative procedures, but are consistent with recent research on the political power of administrative agencies.     

Divided government and US federal rulemaking

Despite paying a great deal of attention to the effects of divided government on legislative outputs, scholars of American politics have surprisingly ignored the potential impact of divided government on bureaucratic regulatory outputs. In this article we argue that divided government should reduce the volume of federal agency rulemaking. We test this hypothesis against a data set covering 21,000 rules from 1983 to 2005. Our study is one of the first to analyze the determinants of federal bureaucratic rulemaking activity across such a long period of time. Our results demonstrate that during periods of divided government, agencies issue fewer rules and fewer substantively significant rules than they do during periods of unified government. These findings suggest that divided government impedes agency rulemaking.