{"title":"Private Autonomy and Power Imbalances","authors":"S. Riesenfeld","doi":"10.2202/1539-8323.1088","DOIUrl":"https://doi.org/10.2202/1539-8323.1088","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1088","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68565170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
EUROPEAN ECONOMIC AND BUSINESS LAW: LEGAL AND ECONOMIC ANALYSES ON INTEGRATION AND HARMONIZATION (edited with G. Hertig, A. Hirsch, & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1996). INSTITUTIONAL INVESTORS AND CORPORATE GOVERNANCE (edited with T. Baums & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1994). EUROPEAN BUSINESS LAW: LEGAL AND ECONOMIC ANALYSIS ON INTEGRATION AND HARMONIZATION (edited with G. Hertig, A. Hirsch & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1991). THE SOVIET SOBRANIE OF LAWS: PROBLEMS OF CODIFICATION AND NONPUBLICATION (edited with K. Hendley) (Berkeley: International and Area Studies, University of California, 1991). LEGAL HARMONIZATION AND THE BUSINESS ENTERPRISE: CORPORATE AND CAPITAL MARKET LAW HARMONIZATION POLICY IN EUROPE AND THE U.S.A. (with K. J. Hopt, Volume 4, European University Institute, INTEGRATION THROUGH LAW) (Berlin; New York: Walter de Gruyter, 1988). THE INTERNATIONAL SECURITIES MARKET: ISSUES OF REGULATION AND TAXATION (Berkeley, Calif.: International Tax & Business Lawyer: University of California, Berkeley, School of Law, 1987). LEGAL PERSPECTIVE ON KOREAN-UNITED STATES TRADE AND INVESTMENT RELATIONSHIPS (Seoul, Korea, 1987). PERANAN HUKUM DALAM PEREKONOMIAN Di NEGARA BERKEMBANG (edited with T. Mulya Lubis) (Jakarta: Yayasan Obor Indonesia, 1986). REGIONAL DEVELOPMENT IN THE UNITED STATES (with R. R. Widner) (Lexington, Mass.: Lexington Books, 1982). CORPORATIONS: CASES AND MATERIALS (with R. W. Jennings) (5th ed., St.
欧洲经济和商法:一体化与协调的法律和经济分析(与G. Hertig、A. Hirsch、K. J. Hopt合编)(柏林;纽约:Walter de Gruyter出版社，1996)。机构投资者与公司治理(与T. Baums & K. J. Hopt合编)(柏林;纽约:Walter de Gruyter出版社，1994)。欧洲商法:一体化与协调的法律与经济分析(与G. Hertig、A. Hirsch和K. J. Hopt合编)(柏林;纽约:Walter de Gruyter出版社，1991)。苏联的法律体系:编纂和不出版的问题(与亨德利合编)(伯克利:加州大学国际与地区研究，1991年)。法律协调与企业:欧洲和美国公司法和资本市场法律协调政策(与K. J. Hopt合著，第4卷，欧洲大学研究所，法律一体化)(柏林;纽约:Walter de Gruyter出版社，1988)。《国际证券市场:监管与税收问题》(加州伯克利:国际税务与商业律师:加州大学伯克利分校法学院，1987年)。从法律角度看韩美贸易投资关系(首尔，韩国，1987)。(与穆里亚·鲁比斯合编)(雅加达:印度尼西亚Yayasan一带一路，1986)。美国区域发展(与R. R. Widner)(列克星敦，马萨诸塞州):列克星敦出版社，1982)。公司:案例和材料(与r.w.詹宁斯)(第5版，圣。
{"title":"Bibliography of Works by Richard M. Buxbaum","authors":"M. Hoffman","doi":"10.2202/1539-8323.1078","DOIUrl":"https://doi.org/10.2202/1539-8323.1078","url":null,"abstract":"EUROPEAN ECONOMIC AND BUSINESS LAW: LEGAL AND ECONOMIC ANALYSES ON INTEGRATION AND HARMONIZATION (edited with G. Hertig, A. Hirsch, & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1996). INSTITUTIONAL INVESTORS AND CORPORATE GOVERNANCE (edited with T. Baums & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1994). EUROPEAN BUSINESS LAW: LEGAL AND ECONOMIC ANALYSIS ON INTEGRATION AND HARMONIZATION (edited with G. Hertig, A. Hirsch & K. J. Hopt) (Berlin; New York: Walter de Gruyter, 1991). THE SOVIET SOBRANIE OF LAWS: PROBLEMS OF CODIFICATION AND NONPUBLICATION (edited with K. Hendley) (Berkeley: International and Area Studies, University of California, 1991). LEGAL HARMONIZATION AND THE BUSINESS ENTERPRISE: CORPORATE AND CAPITAL MARKET LAW HARMONIZATION POLICY IN EUROPE AND THE U.S.A. (with K. J. Hopt, Volume 4, European University Institute, INTEGRATION THROUGH LAW) (Berlin; New York: Walter de Gruyter, 1988). THE INTERNATIONAL SECURITIES MARKET: ISSUES OF REGULATION AND TAXATION (Berkeley, Calif.: International Tax & Business Lawyer: University of California, Berkeley, School of Law, 1987). LEGAL PERSPECTIVE ON KOREAN-UNITED STATES TRADE AND INVESTMENT RELATIONSHIPS (Seoul, Korea, 1987). PERANAN HUKUM DALAM PEREKONOMIAN Di NEGARA BERKEMBANG (edited with T. Mulya Lubis) (Jakarta: Yayasan Obor Indonesia, 1986). REGIONAL DEVELOPMENT IN THE UNITED STATES (with R. R. Widner) (Lexington, Mass.: Lexington Books, 1982). CORPORATIONS: CASES AND MATERIALS (with R. W. Jennings) (5th ed., St.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1078","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is an essay about constitutionalism and, more particularly, the idea of an English constitution. For this reason, it is also, irreducibly, an essay about narrative and narrativity. And for this reason, too, it is also an essay written within the shadow of Robert Cover’s seminal work on the relation of narrative and community. As we shall see it is commonly suggested that the English are undergoing something of a crisis of identity and confidence, beset by international dissension, by the fragmentary impulses of devolution, and by the destabilizing impact of European integration. It is within this context that talk of an English constitution has re-emerged. The English "question" opens up the possibility of English "constitution," and this, in turn, advances ideas of an English "mind," of a political imagination within which an English constitution might be shaped. The first part of this essay will explore the idea of a narrative constitution in greater depth. The second part will then sketch the parameters of the English "question." The final part will then discuss the constitutional implications, focusing more particularly upon two seminal accounts of English constitutionalism; those described by Edmund Burke and Walter Bagehot.
{"title":"The English Question, the English Constitution, and the English Mind","authors":"I. Ward","doi":"10.2202/1539-8323.1069","DOIUrl":"https://doi.org/10.2202/1539-8323.1069","url":null,"abstract":"This is an essay about constitutionalism and, more particularly, the idea of an English constitution. For this reason, it is also, irreducibly, an essay about narrative and narrativity. And for this reason, too, it is also an essay written within the shadow of Robert Cover’s seminal work on the relation of narrative and community. As we shall see it is commonly suggested that the English are undergoing something of a crisis of identity and confidence, beset by international dissension, by the fragmentary impulses of devolution, and by the destabilizing impact of European integration. It is within this context that talk of an English constitution has re-emerged. The English \"question\" opens up the possibility of English \"constitution,\" and this, in turn, advances ideas of an English \"mind,\" of a political imagination within which an English constitution might be shaped. The first part of this essay will explore the idea of a narrative constitution in greater depth. The second part will then sketch the parameters of the English \"question.\" The final part will then discuss the constitutional implications, focusing more particularly upon two seminal accounts of English constitutionalism; those described by Edmund Burke and Walter Bagehot.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1069","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reflections on Germany, the Legal Academy, and Social Engagement: An Interview with Richard Buxbaum","authors":"Laurel E. Fletcher","doi":"10.15779/Z38SS80","DOIUrl":"https://doi.org/10.15779/Z38SS80","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67552011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The relationship between law and violence is one that is long-established. Robert Cover's scholarship suggests an ineluctable relationship between law and violence except in "imaginary worlds." This essay explores the possibilities of a law without violence in worlds that are not imaginary. It looks at two separate sites. First, drawing primarily on ethnographic data, it examines the life of a religious group, a Quaker Meeting, showing how Quaker law dominates the world of the Meeting. Quaker law, the essay argues, is a law that lacks the violence that is associated with state law. However, the essay goes on to argue, though Quaker law is real for the members of Meeting, it depends on propositions about human nature that almost all non-Quakers would reject, thus meaning that the Meeting is, for most people, based on a fiction. Secondly the essay looks at the world of the television series "Buffy the Vampire Slayer," The essay argues that the relationship that Buffy and her friends establish is one founded on their own law; again a law that is not based on violence. The essay concludes that the law that Buffy and her friends create is one that everyone can adhere to.
{"title":"`It's About Power': Law in the Fictional Setting of a Quaker Meeting and in the Everyday Reality of `Buffy the Vampire Slayer'","authors":"A. Bradney","doi":"10.2202/1539-8323.1070","DOIUrl":"https://doi.org/10.2202/1539-8323.1070","url":null,"abstract":"The relationship between law and violence is one that is long-established. Robert Cover's scholarship suggests an ineluctable relationship between law and violence except in \"imaginary worlds.\" This essay explores the possibilities of a law without violence in worlds that are not imaginary. It looks at two separate sites. First, drawing primarily on ethnographic data, it examines the life of a religious group, a Quaker Meeting, showing how Quaker law dominates the world of the Meeting. Quaker law, the essay argues, is a law that lacks the violence that is associated with state law. However, the essay goes on to argue, though Quaker law is real for the members of Meeting, it depends on propositions about human nature that almost all non-Quakers would reject, thus meaning that the Meeting is, for most people, based on a fiction. Secondly the essay looks at the world of the television series \"Buffy the Vampire Slayer,\" The essay argues that the relationship that Buffy and her friends establish is one founded on their own law; again a law that is not based on violence. The essay concludes that the law that Buffy and her friends create is one that everyone can adhere to.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1070","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With his roots in the German-speaking world, for much of his distinguished career, Professor Richard Buxbaum has been a student of Germany in the context of international law. His scholarship has been recognized and honored by his colleagues in German Universities. As Dean of Berkeley's Department of Area and International Studies from 1993 to 1999, he consistently encouraged and supported the Center for German Studies at the University. This paper, dedicated to him, is a reflection of conversations he and I have had over the past few years concerning the future of Germany. Throughout the history of both the German states that comprised Germany after 1949, it was taken as an article of faith that Germany would one day be reunified. Because its founders considered the Federal Republic of Germany (FRG) to be a temporary state, the preamble to their constitution, the Basic Law of May 23, 1949, declared that it was a transitional document. It guaranteed citizenship to Germans living outside the FRG upon their arrival there, thus intending to serve those Germans in the East who could not participate in its creation. In his inaugural address in 1960, the Federal Republic's second President, Heinrich Liibke, declared that German reunification "remains the question of our national life ... on which we are all united, irrespective of party and religious affiliation. In the long run, Germany will not remain separated, whether by absurd boundaries or by brutal disruption of personal ties."1 He considered the reunification of the two Germanys to be a "natural right."2 For conservative politicians in the West, maintaining the vision of a reunified Germany served to cultivate support from the thousands of voters who had been expelled from the eastern territories lost to Germany at the end of World War II; while it was politically expedient, it also helped to forestall any further growth of right-wing nationalist sentiment.3 As late as the 1960s, placards with a map of pre-war Germany divided into three parts-West Germany, East Germany, and the lands east of the Oder-Neisse line-were
{"title":"German Reunification in Historical Perspective","authors":"R. Berdahl","doi":"10.2202/1539-8323.1085","DOIUrl":"https://doi.org/10.2202/1539-8323.1085","url":null,"abstract":"With his roots in the German-speaking world, for much of his distinguished career, Professor Richard Buxbaum has been a student of Germany in the context of international law. His scholarship has been recognized and honored by his colleagues in German Universities. As Dean of Berkeley's Department of Area and International Studies from 1993 to 1999, he consistently encouraged and supported the Center for German Studies at the University. This paper, dedicated to him, is a reflection of conversations he and I have had over the past few years concerning the future of Germany. Throughout the history of both the German states that comprised Germany after 1949, it was taken as an article of faith that Germany would one day be reunified. Because its founders considered the Federal Republic of Germany (FRG) to be a temporary state, the preamble to their constitution, the Basic Law of May 23, 1949, declared that it was a transitional document. It guaranteed citizenship to Germans living outside the FRG upon their arrival there, thus intending to serve those Germans in the East who could not participate in its creation. In his inaugural address in 1960, the Federal Republic's second President, Heinrich Liibke, declared that German reunification \"remains the question of our national life ... on which we are all united, irrespective of party and religious affiliation. In the long run, Germany will not remain separated, whether by absurd boundaries or by brutal disruption of personal ties.\"1 He considered the reunification of the two Germanys to be a \"natural right.\"2 For conservative politicians in the West, maintaining the vision of a reunified Germany served to cultivate support from the thousands of voters who had been expelled from the eastern territories lost to Germany at the end of World War II; while it was politically expedient, it also helped to forestall any further growth of right-wing nationalist sentiment.3 As late as the 1960s, placards with a map of pre-war Germany divided into three parts-West Germany, East Germany, and the lands east of the Oder-Neisse line-were","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1085","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Necessity and the Logic of Strict Liability","authors":"Mark A. Geistfeld","doi":"10.2202/1539-8323.1068","DOIUrl":"https://doi.org/10.2202/1539-8323.1068","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1068","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine. This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One answer is straightforwardly instrumental. The other answer is not; it is about promoting the legitimacy of administrative governance. The two functions have different implications for the design of administrative process and judicial review of agency action. After identifying these two functions, the paper turns to the everyday world of administrative law in an effort to discern which of these two views the law embraces. Examining two areas of law—standing and prejudicial error—yields two different answers. In one area (standing), the law embraces a fairly instrumental view of the function of participation; in the other area (prejudicial error), the law veers more toward a non-instrumental view.
{"title":"Images of Representation","authors":"E. Magill","doi":"10.2202/1539-8323.1062","DOIUrl":"https://doi.org/10.2202/1539-8323.1062","url":null,"abstract":"This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine. This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One answer is straightforwardly instrumental. The other answer is not; it is about promoting the legitimacy of administrative governance. The two functions have different implications for the design of administrative process and judicial review of agency action. After identifying these two functions, the paper turns to the everyday world of administrative law in an effort to discern which of these two views the law embraces. Examining two areas of law—standing and prejudicial error—yields two different answers. In one area (standing), the law embraces a fairly instrumental view of the function of participation; in the other area (prejudicial error), the law veers more toward a non-instrumental view.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the Republic, Plato describes a stage in social decay called “formlessness,” where all sorts of differences are accepted and none is preferred. No one need hold office or obey. People are impatient with all the ties that ought to bind them. Plato's formess city displays three deplorable features. One is the denigration of law and custom. A second is ethical skepticism or nihilism. A third is the repudiation of duty. These features also characterize the divorce culture and the same-sex marriage movement. The Universal Declaration of Human Rights reflects a philosophy quite the reverse of Plato’s formless city. Its philosophy of the family respects custom, embraces objectivism, and recognizes duty.
{"title":"The Formless City of Plato's Republic: How the Legal and Social Promotion of Divorce and Same-Sex Marriage Contravenes the Principles and Undermines the Projects of the Universal Declaration of Human Rights","authors":"S. FitzGibbon","doi":"10.2202/1539-8323.1059","DOIUrl":"https://doi.org/10.2202/1539-8323.1059","url":null,"abstract":"In the Republic, Plato describes a stage in social decay called “formlessness,” where all sorts of differences are accepted and none is preferred. No one need hold office or obey. People are impatient with all the ties that ought to bind them. Plato's formess city displays three deplorable features. One is the denigration of law and custom. A second is ethical skepticism or nihilism. A third is the repudiation of duty. These features also characterize the divorce culture and the same-sex marriage movement. The Universal Declaration of Human Rights reflects a philosophy quite the reverse of Plato’s formless city. Its philosophy of the family respects custom, embraces objectivism, and recognizes duty.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1059","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Richard Stewart, in his classic article 'The Reformation of American Administrative Law,' argues that the demise of the 'transmission belt' model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart's skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that sacrifices democratic legitimacy for the sake of other values).
理查德·斯图尔特(Richard Stewart)在他的经典文章《美国行政法的改革》(The Reformation of American Administrative Law)中认为，行政治理“传送带”模式的消亡造成了机构合法性危机，他对解决这一合法性危机的一系列可能方案持怀疑态度。我认为斯图尔特的怀疑是错误的。没有任何可行的行政结构在民主上是合法的，这也许是真的;但考虑到道德辩护的逻辑，在机构决策者或设计机构的人面临的每一种选择情境中，都存在一些道德上允许和合理的选择(也许是为了其他价值而牺牲民主合法性的选择)，这也是事实。
{"title":"Justification, Legitimacy, and Administrative Governance","authors":"M. Adler","doi":"10.2202/1539-8323.1060","DOIUrl":"https://doi.org/10.2202/1539-8323.1060","url":null,"abstract":"Richard Stewart, in his classic article 'The Reformation of American Administrative Law,' argues that the demise of the 'transmission belt' model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart's skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that sacrifices democratic legitimacy for the sake of other values).","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"121 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1060","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68563938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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