Constitutional Confusion: Slavery,Abortion, and Substantive Constitutional Analysis

A comparison of two U.S. Supreme Court cases about fundamental rights, one on slavery, the other on abortion, sheds light on constitutional law and the principles undergirding liberal constitutional democracy. The Dred Scott case in 1857 denied constitutional rights to enslaved Africans and their descendants living in the United States. The Roe v. Wade decision in 1973 created a constitutional right to abortion that denied constitutional personhood to human beings prior to birth. Both cases involved applications of what legal scholars call “substantive due process”—that is, a substantive interpretation of the constitutional requirement that governments provide persons with “due process of law” that moves beyond procedural formalism. Although many constitutional scholars deny the legitimacy of substantive due process as a legal doctrine, this article proposes that the judicial system cannot ultimately avoid substantive moral questions in constitutional interpretation. In both cases examined here, the crucial question was about who counts as part of the people whom the Constitution protects, and that question could not be answered in purely formal terms. Both Dred Scott and Roe v. Wade erred not by engaging substantive moral questions but rather by denying, in different ways, the natural rights of human persons.     

Confucianism,Moral Equality,and Human Rights: A Mencian Perspective

This paper attempts to show the compatibility between Confucianism and human rights, first by revisiting the moral philosophy of Mencius, a key founder of the Confucian tradition, then by reconstructing the Mencian‐Confucian idea of human rights from the perspective of his moral philosophy. One of my central claims is that not only did Mencius acknowledge core human rights—socioeconomic as well as civil‐political—justified by his foundational faith in universal moral equality and human dignity, but he further understood the right to subsistence as an essential part of Confucian‐constitutional rights. Contrary to the widely received notion that in Mencian‐Confucianism the right to subsistence has an overriding value vis‐a‐vis civil‐political rights, I argue that Mencius (and Confucians in general for that matter) never stipulated such a lexical ranking among rights. I conclude by discussing how the type of Confucian moral reasoning that Mencius employs in justifying the moral value of human rights can be re‐appropriated to produce Confucian rights suitable for today. … … … … … …     

CREATING A CONSTITUTIONAL ORDER OF FREEDOM IN EMERGING MARKET ECONOMIES1

Economic liberalisation offers the greatest hope for bringing the developing world out of poverty, but to be successful economic liberalisation also requires political and constitutional reform to safeguard private property rights and secure the rule of law. This article examines the process of constitutional reform in a number of developing nations that have recently undergone economic liberalisation, with particular reference to the experience of reform in China.     

Political Leadership,Conflict and the Prospects for Constitutional Peace

The emphasis in constitutional political economy has been that new rules and institutions can be devised that improve the welfare of a society. Given the number of societies that are infected with political conflict and as a result lower levels of welfare, this paper attempts to analyse why we do not see more constitutional conventions aimed at eliminating conflict. The key idea is that expressively motivated group members may create incentives for instrumentally motivated group leaders such that it leads them to choose conflict rather than compromise. Nonetheless, it is not argued that such a peace is impossible to obtain. This leads to a further question, that if such a constitutional agreement could be found, would the expressive perspective alter the conventional instrumental perspective on the sort of constitutional reform that should be undertaken?     

我国高等学校教师权利保护研究

随着高等教育管理的逐步法治化,高校教师合法权利保护和救济制度逐渐受到关注,但实效性并不高。当教师权利受到侵害时,目前的法律和制度无法很好的保护,应从树立法治观念、提高维权意识;改革教代会和工会;健全高等学校教师申诉制度;构建高等学校教育仲裁制度等方面来完善高校教师权利保护制度。     

关于胎儿“继承权”保护的法律问题探讨

妇女和儿童的权益较易受到侵害,他们作为弱势群体大都受到国际、国内的双重法律保护,但权益更加容易受到侵害的胎儿却并未得到较好保护,胎儿甚至不能享有合法"权益",权"字本身更多的含义是权利,民事权利。现实生活中,胎儿权益受到侵害的事情并不鲜见,如何保护胎儿的合法权益?笔者试从胎儿"合法权益"中的"继承权"入手,谈谈胎儿"继承权"保护的相关法律问题。     

Single-stage election procedures for large electorates

The Condorcet efficiency of single-stage election procedures is considered under the assumption of impartial culture for large electorates. The most efficient ranked voting rule is either Borda rule or a truncated scoring rule. A decision rule is established to determine the number of candidates, k, that individuals should be required to vote for, whether or not ranking should be required, and the scoring rule that should be used if ranking is required. This decision depends upon the number of candidates available and the probabilities that individuals will vote if they must rank k candidates or simply report k candidates.     

Accessing the Urban Commons Through the Mediation of Information: The Eliana Silva Occupation,Belo Horizonte,Brazil

This essay demonstrates how mediations (called Dialogues) between the University of Belo Horizonte and the residents of the Eliana Silva Occupation in that city have secured not only the right to urban land and constitutional rights that have been historically violated in Brazil, but also the right to that which is of common interest. The essay speaks to Michael Hardt and Antonio Negri's contention that what is common goes far beyond the provision of public services. This starting point allows us to see that urban occupations are politically empowered, to the extent that poor people consciously violate the Brazilian law governing the right of possession and ownership over urban land through creative and cooperative actions that are undertaken and extended across networks. This essay will focus on the centrality of the struggle to build a common communication platform serving to nourish social ties and sociability among those social actors who share the same human deprivation—lack of access to what should be widely available to all citizens. On the theoretical side, the essay takes Pierre Bourdieu, Bruno Latour and Milton Santos as its guides to understanding how social actors act in the struggle for socio‐spatial coexistence and urbanity.     

Drug testing and the law

This article examines judicial and administrative rulings and legislation involving or related to the issue of drug testing in the workplace. It discusses the rights of employees in the public and private sector: constitutional rights; federal, state, and local statutory rights; rights of unionized employees; and common law rights. It analyzes both the current state of the law and future directions the law may take, as courts and administrative agencies decide more cases and governmental bodies continue to pass drug testing legislation.     

Workers,communities, and industrial property: An emerging language of rights

Out of recent national debates and local struggles over plant closings, an alternative language of industrial property rights has emerged. This language places the rights of workers and communities above, or on a par with, those of owners and managers. While this new language of rights coexists with more traditional conceptions of owner/manager prerogatives, its emergence suggests that rights of property ownership, which are often seen as relatively immutable structural constraints upon the capitalist labor process, may themselves be contested and subject to change.     

Natural Rights,Human Rights,and Libertarianism

The present article is devoted to developing a libertarian understanding of whether natural rights may or may not underpin human rights and, if so, how. Libertarianism is first defined in terms of the nonaggression principle (NAP), in answer to the question “What is the proper use of force?” This provides a basis for the libertarian positions on property rights, taxation, and many other issues, including human rights. Various philosophical rationales for the NAP are explored, including utilitarianism, religion, and natural rights. The basis of human rights is then examined. Every ethical tradition supports the nonaggression principle, which makes it an ideal candidate for the fundamental basis of human rights. Unfortunately, other traditions expand upon human rights by adding “positive” rights that ultimately violate the NAP. The conclusion takes up the application of libertarian principles to three issues, which could be viewed as human rights questions: discrimination, abortion, and the “trolley problem.” The last one involves taking one life to save many others.     

Patents, Secrets, and the First-Inventor Defense

We analyze optimal patent design when innovators can rely on secrecy to protect their innovations. Secrecy has no fixed term but does not preclude accidental disclosure nor independent creation by other inventors. We derive the optimal scope of the rights conferred to such second inventors, showing that if the patent life is set optimally, second inventors should be allowed to patent and to exclude first inventors who have relied on secrecy. We then identify conditions under which it is socially desirable to increase patent life as much as is necessary to induce first inventors to patent. The circumstances in which it is preferable that they rely on secrecy seem rather limited .     

Secured lower bound, composition up, and minimal rights first for bankruptcy problems

We study the implications of secured lower bound when imposed together with minimal rights first or composition up for the resolution of conflicting claims. We show that the Talmud rule is the only rule satisfying secured lower bound, minimal rights first, and consistency. In addition, we show that if minimal rights first and consistency in the above characterization were replaced with composition up and null claims consistency, respectively, the constrained equal awards rule stands out as the only acceptable rule.     

Lies,damned lies and statistics: the accuracy of survey responses

That survey research is error prone is not a new idea and different varieties of non-sampling error have been investigated in the literature as well as consideration being given in many statistics textbooks to the issue of sampling error. The paper here considers research upon corporate environmental reporting. It compares information provided by corporate environmental reports with information that survey respondents claim their organization’s environmental report contains. This enables the accuracy of the claims to be assessed. Consideration is given to two different industries the Water industry and the Energy industry. Errors due to inaccurate reporting by survey respondents are shown to be relatively infrequent and respondents appear just about as likely to claim they report information that they do not, in fact, report as to fail to indicate that they report information that is, in fact, actually reported.     

A descriptive study of behavioral responses of sexual harassment targets: Implications for control theory

The problem of sexual harassment in the workplace can be viewed within the framework of personal control. In particular, sexual harassment can be viewed as an infringement upon employees' rights to control the conditions under which they work. Targets of harassment must tolerate sexual harassment to avoid negative consequences such as termination, demotion, distasteful remarks or jokes, and so forth. Previous research (Wortman & Brehm, 1975; Greenberger & Strasser, 1986) into personal control has drawn upon two theories—reactance theory and learned helplessness theory—to explain behavioral responses to infringement upon personal control. The purpose of this study is to investigate the efficacy of personal control theories in explaining responses of targets who file discrimination suits.     

Bandit Heroes: Social,Mythical, or Rational?*

Bandits steal from their fellow men. Yet they are regularly subjects of folksongs, novels, and movies. In these outlets they are presented as folk heroes despite their crimes. Sociological explanations for this phenomenon based upon Eric Hobsbawm's concept of the “social bandit” and psychological explanations based upon myth building have been brought forth to explain the seeming contradiction. We propose an alternative explanation for the bandit hero phenomenon. We argue that bandits, acting solely in their own self‐interest, unintentionally provide valuable services to societies under the rule of a predatory government. We identify three separate mechanisms by which bandits benefit society that do not necessarily hinge upon class struggles or historical dialectics. The social benefits that bandits generate form the foundation for their positive reception.     

Opting-Out: the Constitutional Economics of Exit

The central aspect, which makes markets operate differently than governments, is the ability of market actors to "exit" from future interactions. This point is applied to constitutional analysis, with an emphasis on the constitutional possibility of individuals or groups in a society "exiting," wholly or partly, from the political community or from specific institutions within such. Hobbesian and Lockean states-of-nature are sketched using a common framework of some simple games, and the Lockean solution to the danger of tyranny is formalized. This solution is compared to the typical interaction in a market economy, where the possibility of "exit" from future interactions with disagreeable parties introduces severe restrictions on the possible exploitation. This analysis is extended to the political sphere, and it is argued in general terms that a constitutional set-up utilizing a semi-Lockean right to "exit" (e.g., federal structures with rights of secession, voucher systems, etc.) could be an efficient guarantee against sub-optimal solutions and function so as to reduce redistributive conflicts and make welfare-increasing transactions possible.     

Is This What The Democratic City Looks Like? Local Democracy,Housing Rights and Homeownership in the Portuguese Context

This article analyses the creation of a normative framework for the democratic city during the regime change in Portugal in 1975—the answers that were given to the question, ‘What should a city be like in a democratic regime?’ While I critically discuss post‐democracy and its use of post‐foundational contributions, I review the post‐revolution Portuguese constitutional debate, contending that the call for democratization brought by urban popular organizations was answered with a political compromise that exchanged expectations of a participatory city for a commitment to a social rights city, enhanced with a promise of homeownership for urban popular segments. In light of this, in this article I question post‐democratic proposals, arguing that when this approach implicitly establishes equivalence between democracy and ‘the political’, it has difficulties in interpreting how the grammar of democracy is ‘organized’ in conflictual and contingent processes of democratic institutionalization. As an alternative, I contend that a critical debate concerning democracy and the urban must address how democratic expectations of emancipation have been translated into institutions and rights through interwoven and situated processes of politicization and depoliticization that allow both politicization of the urban and the production of consent .     

Political Profit: Taxing and Spending in Democracies and Dictatorships

A bstract . The economic analysis of the power to tax and spend, or what Franz Oppenheimer called "the political means," is applied to democracies and to dictatorships. The constraints imposed by democracies and dictatorships on the "iron law of political redistribution" and the "law of hierarchical centralization" are examined. It is shown that the fiscal exploitation inherent in these two laws of political profit reaches its fullest potential in a dictatorship, where a single firm attempts to monopolize the government by forbidding competition to its rule. Democracy and capitalism are correlatives, since they both rest upon rights , which necessarily imply property. Both socialism and dictatorship destroy rights, the former by abolishing private ownership over capital and resources, the latter by forbidding the use of such resources for the purpose of competing against the ruling group. The greater the centralization of the State , the greater its capacity to expand its power; and the greater the scope of the State, the more economical it becomes to centralize the government, with force if necessary. Thus, dictatorship and socialism converge in despotism.     

Financing rapid transit—a simulation of cost sharing for extensions to BART

The initial Bay Area Rapid Transit (BART) system was financed largely by bond issues and direct sales tax revenue from the three counties in the San Francisco Bay Area, which the mass transit system now serves. It appears that if further extensions of the BART system into other jurisdictions are to be undertaken, they will be funded largely with federal government subsidies. Hence, only a small portion of the capital costs of any extension will be borne by the residents of that jurisdiction and, therefore, a significant property tax burden inequity will exist between those residents served by the original system and those residents to be served by an extension. If extension of the system into neighboring jurisdictions is undertaken, it is likely that a “sharing rule” or “buy-in rule” will be politically negotiated to equalize this burden.Unfortunately, new jurisdictions to be served by BART cannot evaluate a BART extension, as against other mass transit alternatives, since its total capital cost will involve not only the incremental land acquisition and construction costs, but an unknown cost share amount. This paper reports on the development of a decision support system (DSS) incorporating a simulation-based financial planning model, to assess the impact of various levels of federal support and alternative BART extensions upon the financial resources of the participating jurisdictions, present and potential.The utility of the DSS for planning is illustrated by examining a prominent alternative, the extension of BART to the San Francisco Airport and San Mateo County, under the assumption that the sharing rule will be based upon total assessed property valuation. Aside from its utility as a planning tool, the usefulness of the DSS in this task is further demonstrated by its identification of unforeseen tax burden inequities, which would result from one proposed sharing rule.