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Equal Law in an Unequal World 不平等世界中的平等法律
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2013-01-20 DOI: 10.2139/SSRN.2203735
Paul Gowder
The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection clauses. Many scholars, however, have worried that the rule of law requirement that the laws be general — ordinarily interpreted as command of “formal equality” — forbids states from pursuing genuine (“substantive”) equality, particularly between groups divided by lines of social hierarchy. They have similar worries about the Equal Protection clause. In this paper, I aim to put those worries to rest. First, I show that the formal equality interpretation of the rule of law (and of equal protection) is logically incoherent. Then, drawing on a novel account of how to determine the expressive meaning of a law, I show that not only are the rule of law and equal protection compatible with egalitarian justice, but that they positively demand at least a basic level of egalitarian justice, in the form of the command to eliminate social hierarchies embedded in the law. From this, I conclude that the legal ideal of the rule of law contributes to, rather than threatens, critical projects aimed at the elimination of social hierarchy. Political radicals, associated in the law with, inter alia, Marxism, feminism, critical legal studies, critical race studies, and other intellectual movements, have long been skeptical of the legal ideals traditionally associated with liberalism. This paper suggests that they should learn to love the rule of law.
法治的道德理想是宪法合法性的基本原则,体现在美国法律的正当程序条款和平等保护条款中。然而,许多学者担心,法治要求法律具有普遍性——通常被解释为“形式平等”的命令——禁止国家追求真正的(“实质性”)平等,特别是在按社会等级划分的群体之间。他们对平等保护条款也有类似的担忧。在本文中,我的目的是消除这些担忧。首先,我证明了对法治(以及平等保护)的形式平等解释在逻辑上是不连贯的。然后,通过对如何确定法律的表达意义的一种新颖的解释,我表明,不仅法治和平等保护与平等正义是相容的,而且它们积极地要求至少具有基本水平的平等正义,其形式是消除嵌入在法律中的社会等级的命令。由此,我得出结论,法治的法律理想有助于(而不是威胁)旨在消除社会等级制度的关键项目。在法律上与马克思主义、女权主义、批判性法律研究、批判性种族研究和其他知识分子运动联系在一起的政治激进分子,长期以来对传统上与自由主义联系在一起的法律理想持怀疑态度。本文建议他们应该学会热爱法治。
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引用次数: 13
Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflict of Interest Policies. 烟草业对美国法学会《侵权行为重述》的影响及其对利益冲突政策的影响。
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2012-11-01
Elizabeth Laposata, Richard Barnes, Stanton Glantz

The American Law Institute ("ALI") is a prestigious and influential organization that creates treatises on the current state of the law, including "Restatements" of case law that guide judicial decisions and legislation. This paper uses previously secret tobacco industry documents made available as the result of state and federal litigation against the industry to describe how the tobacco companies, acting both indirectly through their trade organization, the Tobacco Institute, and directly, using influential lawyers, quietly influenced the ALI's writing of the Restatements. The tobacco industry's ease of access to the ALI calls into question the Institute's independence, the preparation of major policy documents such as the Restatements, as well as the Institute's ability to monitor and control conflicts of interest. The ALI's conflict of interest policies lag behind comparable organizations such as the National Academy of Sciences and the Institute of Medicine, and are insufficient to protect Institute projects from significant outside influence. Because of the undisclosed influence of the tobacco industry over the ALI, courts and legislatures should not apply the principles embodied in the Restatements in tort cases against the tobacco companies for injuries suffered from tobacco use. Until the ALI implements strong conflict of interest policies to ensure independence from private-interest manipulation, courts and legislatures should not rely on Institute reports and recommendations as neutral scholarly summaries of the law that should guide judicial and legislative decision-making.

美国法学会(American Law Institute,简称 "ALI")是一个享有盛誉且极具影响力的组织,该组织撰写有关法律现状的论文,包括指导司法判决和立法的判例法 "重述"。本文利用因州和联邦对烟草业的诉讼而公开的烟草业秘密文件,描述了烟草公司如何通过其行业组织烟草协会(Tobacco Institute)间接行事,以及如何利用有影响力的律师直接行事,悄悄地影响 ALI 撰写《重述》。烟草业可以轻易地接触到 ALI,这使人们对该机构的独立性、《重述》等重要政策文件的编写以及该机构监督和控制利益冲突的能力产生了怀疑。ALI 的利益冲突政策落后于国家科学院和医学研究所等同类组织,不足以保护研究所的项目免受重大外部影响。由于烟草业对 ALI 的影响未被披露,法院和立法机构不应将 "重述 "中体现的原则应用于针对烟草公司因使用烟草而造成伤害的侵权案件中。在 ALI 实施强有力的利益冲突政策以确保独立于私人利益操纵之前,法院和立法机构不应依赖研究所的报告和建议,将其作为指导司法和立法决策的中立的法律学术总结。
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引用次数: 0
Saving Small Employer Health Insurance 节省小雇主健康保险
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2012-08-29 DOI: 10.2139/SSRN.2138200
Amy B. Monahan, D. Schwarcz
Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.
医疗改革将大量精力投入到重振小型团体健康保险市场上,这些市场为全职雇员少于50人的雇主提供服务。不幸的是,《合理医疗费用法案》(Affordable Care Act)中一些相互交织的条款产生了强大的激励机制,从2014年开始,这些条款往往会破坏这个市场,并在此过程中增加改革的财政成本。首先,以低收入员工为主的小雇主往往会选择退出小团体市场。其次,拥有混合收入雇员的小雇主将有强烈的动机提供既不是技术上“负担得起”的保险,也不是“最低价值”的保险,以便为其低收入雇员在个人市场上保留保费和成本分摊补贴的可用性。第三,拥有低风险员工的小型雇主将有强烈的动机自行投保他们提供的任何团体计划,以避免交叉补贴高风险群体。本文对这些风险进行了综合分析,提出了一些拯救小集团市场的建议。例如,它认为,计划在2014年组织小团体市场的SHOP交易所必须战略性地针对自我保险的弱点,提供简单、无风险的保险选择,方便员工选择。他们还必须积极推销这种保险,因为保险经纪人可能会出于经济动机,向小雇主推销自我保险。此外,州和联邦立法者应该探索各种可能性,使小雇主更有可能提供团体保险,如果他们提供团体保险,通过SHOP交换而不是自我保险计划来实现。本文探讨的可能性包括修改保费和小企业税收抵免的条款,规范止损保险,以及实施各种限制或处罚,旨在防止自我保险和小团体市场之间的动荡。
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引用次数: 2
Queues in Law 法律上的排队
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2012-08-10 DOI: 10.2139/SSRN.2147333
R. Perry, Tal Z. Zarsky
"First in, first out" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, "first come, first served" and "first-in-time, first-in-right," have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees’ seniority benefits, mass torts, and military discharge, all the way to social and organizational practices regulated by law, such as organ allocation policies, event ticket sales, and data transfers over the internet. Yet although FIFO is an omnipresent and overarching principle in law, it has never been recognized or analyzed as such in legal literature.The Article aims to fill this surprising theoretical gap. Its purpose and novelty are threefold. First, it constructs an innovative and comprehensive theoretical framework — integrating fairness and efficiency — for assessing FIFO’s role in resource allocation. Second, the Article highlights the prevalence of FIFO in law, by analyzing and critically evaluating its role in a wide array of legal contexts through this theoretical prism. Third, it substantiates a jurisprudentially provocative thesis: while FIFO can be similarly applied in numerous contexts, it has no consistent set of justifications for all applications. Its rationalization in law must be highly varied and context-specific. The Article’s seminal contributions provide a novel and robust foundation for numerous future projects, theoretical and empirical alike.
“先进先出”(FIFO)是一种分配原则,根据资源的进入顺序将资源分配给相关方。先进先出和它的近亲“先到先得”和“先到先得”有许多法律应用。这些范围从涉及所有权、担保交易和滋扰的传统私法纠纷,到更广泛的分配,如雇员的年资福利、大规模侵权和退伍,一直到法律规定的社会和组织实践,如器官分配政策、活动门票销售和互联网上的数据传输。然而,尽管FIFO是法律中无所不在的首要原则,但在法律文献中从未被认可或分析过。本文旨在填补这一令人惊讶的理论空白。它的目的和新颖性有三个方面。首先,它构建了一个创新和全面的理论框架-整合公平和效率-评估先进先出在资源分配中的作用。其次,本文通过这一理论棱镜分析和批判性评估其在各种法律背景下的作用,强调了法律中先进先出的普遍性。第三,它证实了一个法学上具有挑衅性的论点:虽然FIFO可以在许多情况下类似地应用,但它没有一套一致的理由适用于所有应用。它在法律上的合理化必须高度多样化,并根据具体情况而定。文章的开创性贡献为许多未来的理论和实证项目提供了一个新颖而坚实的基础。
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引用次数: 22
Joint Tenancies in Iowa Today 今天爱荷华州的联租
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2012-01-25 DOI: 10.2139/SSRN.1991921
N. Hines
This paper updates the author's extensive earlier research on Iowa joint tenancies, which was published in the 1960s. The earlier research revealed that, while joint tenancy law had changed very little in the past five hundred years, patterns of joint tenancy usage had expanded greatly, particularly in property holdings by married couples. This paper traces the changes in Iowa joint tenancy law since the 1960s. It posits that, in respect to joint tenancies in real property and tangible personal property, the law has changed very little, except for adoption of an "Intent" analysis to replace the former "Four Unities" test for determining severance issues. Far greater change is observed, however, in the Iowa law governing joint and survivor accounts with financial institutions. With respect to such joint and survivor accounts, the author suggests how the law might still be improved to make such accounts more effective in achieving the goals of the parties who create them.
本文更新了作者在20世纪60年代发表的关于爱荷华州联合租赁的广泛早期研究。早期的研究表明,虽然联权共有法在过去的500年里变化很小,但联权共有的使用模式却大大扩大了,特别是在已婚夫妇的财产持有方面。本文追溯了20世纪60年代以来爱荷华州联权共有法的变化。它认为,就不动产和有形个人财产的联权共有而言,法律几乎没有改变,只是采用了“意图”分析来取代以前确定遣散问题的“四种统一”标准。然而,在爱荷华州与金融机构管理共同账户和幸存者账户的法律中,可以观察到更大的变化。关于这种共同帐户和遗属帐户,发件人建议如何改进法律,使这种帐户更有效地实现创建帐户的当事方的目标。
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引用次数: 0
Statutes as Contracts? The 'California Rule' and its Impact on Public Pension Reform 法规还是合同?“加州规则”及其对公共养老金改革的影响
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2011-09-26 DOI: 10.2139/SSRN.1933887
Amy B. Monahan
State and local retirement plans are underfunded by trillions of dollars, at a time when many states are facing decreased revenues and increased social needs. The result is that many states are currently giving active consideration to how best to address the problem of state and local pension plan underfunding given a state’s limited resources. In many states, however, courts have held that the statutes creating state retirement systems create contracts between the state and employee that prohibit the state from making any detrimental changes to the benefits provided to current employees within such systems, even on a prospective basis. This article examines the development of such a rule in California, a state that has been widely influential in this area of law, evidenced by the fact that courts in twelve other states have simply adopted the holdings of the California Supreme Court as their own. This Article illustrates that in holding that benefits not yet earned are contractually protected, California courts have improperly infringed on legislative power and have fashioned a rule inconsistent with both contract and economic theory.
在许多州面临收入减少和社会需求增加的情况下,州和地方退休计划的资金缺口高达数万亿美元。结果是,许多州目前都在积极考虑如何最好地解决州和地方养老金计划资金不足的问题,因为一个州的资源有限。然而,在许多州,法院认为,建立州退休制度的法规在州和雇员之间建立了合同,禁止州对在这种制度下提供给现有雇员的福利做出任何有害的改变,即使是在未来的基础上。本文考察了这一规则在加利福尼亚州的发展,该州在这一法律领域具有广泛的影响力,其他12个州的法院直接采纳了加州最高法院的判决,这一事实证明了这一规则的发展。本文说明,加州法院认为尚未获得的利益受合同保护,这不正当地侵犯了立法权,并形成了与合同理论和经济理论不一致的规则。
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引用次数: 14
Unofficial Family Law 非正式家庭法
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2010-03-01 DOI: 10.1017/CBO9781139013789.008
A. Estin
This Essay explores a type of legal pluralism found in secular societies, including the United States, in which minority groups adhere to unofficial religious law norms within a larger framework of state family law. Official and unofficial law are sometimes closely interwoven, as with the formalization of marriage, and sometimes stand directly in opposition, as with laws prohibiting the practice of polygamy. In an intermediate position, these societies have seen a complex interaction between secular and religious law in the context of marriage dissolution. The different opportunities presented by each legal system may generate significant strategic behavior by individuals, and these risks have prompted careful collaboration between religious and secular authorities in a number of jurisdictions. In this collaboration, the secular state helps religious communities to define a space and an identity, and simultaneously seeks to establish the basic guarantees of citizenship within the larger society for all group members.
本文探讨了在包括美国在内的世俗社会中发现的一种法律多元主义,在这种社会中,少数群体在国家家庭法的更大框架内坚持非官方的宗教法律规范。官方和非官方的法律有时紧密地交织在一起,如婚姻的正规化,有时直接对立,如禁止一夫多妻制的法律。在一个中间的位置,这些社会已经看到了在婚姻解除的背景下世俗和宗教法律之间复杂的相互作用。每个法律体系所提供的不同机会可能会产生重要的个人战略行为,这些风险促使许多司法管辖区的宗教和世俗当局之间进行谨慎的合作。在这种合作中,世俗国家帮助宗教团体定义空间和身份,同时寻求在更大的社会中为所有团体成员建立公民身份的基本保障。
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引用次数: 30
The Death Penalty in Delaware: An Empirical Study 特拉华州死刑:一个实证研究
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2008-08-06 DOI: 10.2139/SSRN.1207882
John H. Blume, T. Eisenberg, Sheri L. Johnson, V. Hans
This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the result of a change in the Delaware death sentencing scheme from jury to judge sentencing. When that change was implemented, the number of death sentences rose dramatically. Our preliminary findings also reveal a geographic effect. Two thirds of the death sentences were imposed in New Castle County, 29% were imposed in Kent County and only 5% of the death sentences resulted from murders which occurred in Sussex County. Finally, in analyzing the outcomes of the cases in which the defendant was sentenced to death on appeal, we found an overall error rate of 44%.
本文报告了特拉华州死刑问题三期实证研究第一阶段的调查结果。在第一阶段,我们只审查被告被判处死刑的案件。虽然我们的发现是初步的,但正如其他司法管辖区的许多其他研究发现的那样,似乎存在受害者种族影响。70%的死刑判决是针对白人受害者的,尽管大多数谋杀受害者是黑人。此外,特拉华州是全国死刑判决率最高的州之一。这一高比率似乎是特拉华州死刑判决制度从陪审团判决改为法官判决的结果。这一改变实施后,死刑判决的数量急剧上升。我们的初步研究结果还揭示了地理效应。三分之二的死刑判决是在纽卡斯尔县判处的,29%是在肯特县判处的,只有5%的死刑判决是由于发生在苏塞克斯县的谋杀。最后,在分析被告上诉后被判处死刑的案件结果时,我们发现总体错误率为44%。
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引用次数: 4
Grounding Trademark Law Through Trademark Use 以商标使用为基础的商标法
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2007-03-01 DOI: 10.31235/osf.io/yn27k
Mark A. Lemley, Stacey L. Dogan
The debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability under the guise of direct infringement suits. Dinwoodie and Janis's thorough account notwithstanding, it remains the fact that, before the recent spate of Internet-related cases, no court had ever recognized a trademark claim of the sort that trademark holders are now asserting. Trademark infringement suits have always involved allegations of infringement by parties who use marks in connection with the promotion of their own goods and services. The question raised by the trademark use cases, as we view it, is whether courts should countenance a radical departure from that traditional model without specific instruction from Congress. We think they should not. In this paper, we explain the origins of trademark use doctrine in traditional limits on the scope of the trademark right and in the distinction between direct and contributory infringement. We also explain why we cannot simply rely on the likelihood of consumer confusion test to solve the problems the trademark use doctrine addresses, and we examine the difficult problem of defining the scope of the trademark use doctrine.
关于商标使用的争论已经成为知识产权法中的一个热点问题。格雷姆·丁伍迪(Graeme Dinwoodie)和马克·詹尼斯(Mark Janis)在《使用的困惑:商标法中的语境主义》(Confusion over Use: Contextualism In Trademark Law)一书中将其描述为是否以一种新的、意想不到的方式限制商标权的争议。然而,在我们看来,还有另一种更符合历史的方式来构建商标使用辩论:问题是,在没有具体法定授权的情况下,法院是否应该允许商标持有人提出一种新的、前所未有的商标侵权索赔。弹出式广告和关键词广告的案例都是试图在直接侵权诉讼的幌子下强加第三方责任。尽管Dinwoodie和Janis做了详尽的描述,但事实是,在最近大量与互联网相关的案件发生之前,从来没有法院认可过商标持有人现在所主张的那种商标索赔。商标侵权诉讼总是涉及当事人在宣传自己的商品和服务时使用商标的侵权指控。在我们看来,商标使用案例所提出的问题是,法院是否应该在没有国会具体指示的情况下,支持对传统模式的彻底背离。我们认为他们不应该这么做。在本文中,我们从传统的商标权范围限制和直接侵权与共同侵权的区分中解释了商标使用原则的起源。我们还解释了为什么我们不能简单地依靠消费者混淆可能性测试来解决商标使用原则所解决的问题,我们还研究了定义商标使用原则范围的难题。
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引用次数: 24
The black box 黑匣子
IF 1.3 3区 社会学 Q2 LAW Pub Date : 2006-07-05 DOI: 10.2139/ssrn.916061
M. Miller, R. Wright
Classic accounts of prosecutorial discretion, from Herbert Wechsler through the present day, portray charging discretion as the antithesis of law. Scholars express particular concerns about racial and other nefarious grounds for prosecution, while others worry about the increased range of choices available to prosecutors when criminal codes become bloated with new crimes. The familiar response to this problem features a call for greater external legal regulation. The external limits might come from judges who review prosecutorial charging decisions, or from legislatures reworking the criminal code. These external oversight projects, however, have failed. This article explores some facets of internal regulation - efforts within prosecutors' offices to control and legitimize prosecutorial discretion. Based on remarkably detailed data from New Orleans and observations from several other major cities, we are able to examine the inner working of prosecutors' offices - the black box - to learn about the reasons prosecutors give for their declinations. The long-delayed arrival of the information age to prosecutors' offices allows us to understand more about the internal regulatory forces within those offices. Our thesis is simple but profound: the internal office policies of thoughtful chief prosecutors can produce the predictable choices, respectful of legal constraints, that lawyers expect from traditional legal regulation. The reasons prosecutors give for their charging decisions show the influence of substantive and procedural legal doctrines and the policy priorities of supervisors - all sources that one would expect to dominate in a system that respects the rule of law. Moreover, these reasons show prosecutors responding to social norms, living up to group expectations about what it means to be a prosecutor in that particular office. The internal norms of prosecutors differ from other social norms recognized and studied by legal scholars because they grow and operate within a government organization. Norms within government organizations are far more susceptible to design changes than social norms in public and private groups. The key virtue of social norms within a prosecutor's office is transparency. Internal regulations deserve respect when they expose the prosecutor's black box to scrutiny and accountability.
从赫伯特·韦克斯勒(Herbert Wechsler)到现在,对检控自由裁量权的经典描述将指控自由裁量权描绘为法律的对立面。学者们对种族和其他邪恶的起诉理由表示特别关注,而其他人则担心,当刑法因新罪行而变得臃肿时,检察官的选择范围会扩大。对这一问题的常见回应是呼吁加强外部法律监管。外部限制可能来自审查起诉决定的法官,或者来自修订刑法的立法机构。然而,这些外部监督项目都失败了。本文探讨了内部监管的一些方面-检察官办公室内控制和使检察官自由裁量权合法化的努力。根据来自新奥尔良的非常详细的数据和来自其他几个主要城市的观察,我们能够检查检察官办公室的内部运作——黑箱——来了解检察官给出的拒绝的原因。检察官办公室姗姗来迟的信息时代,使我们能够更多地了解这些办公室的内部监管力量。我们的论点简单而深刻:深思熟虑的首席检察官的内部办公室政策可以产生可预测的选择,尊重法律约束,这是律师们期望从传统法律监管中得到的。检察官为其指控决定给出的理由显示了实体法和程序法理论以及监督者的政策优先次序的影响——在一个尊重法治的制度中,人们期望所有这些来源都占主导地位。此外,这些理由表明,检察官是对社会规范的回应,符合群体对在特定办公室担任检察官意味着什么的期望。检察官的内部规范不同于法律学者所认可和研究的其他社会规范,因为它是在政府机构内成长和运作的。政府组织内部的规范远比公共和私人团体的社会规范更容易受到设计变化的影响。检察官办公室的社会规范的关键优点是透明。当内部规定将检察官的黑匣子暴露在审查和问责之下时,它们值得尊重。
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引用次数: 33
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