美国行政规则的禁止追溯既往及其例外

法不溯及既往作为法的重要原则由来已久,但该原则也存在一些例外。根据美国宪法上正当程序的要求,禁止行政机关在公众不知情的情况下适用溯及既往的规则。从美国的司法实践看,允许行政机关在国会明确授权的情形下制定溯及既往的行政规则。甚至,有时在国会授权不甚明确的情况下也允许行政规则的溯及既往。行政机关制定溯及既往的行政规则不能损害公众的重要权利,且必须符合国会的立法意图。同时,非立法性规则和程序性规则不受溯及既往原则的限制。     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

我国行政诉讼全面审查制度再思考——法院对行政机关认定事实的态度分析

我国人民法院对行政机关认定事实采取怀疑或否定态度,对行政机关认定事实实行全面审查。英美法系国家法院对行政机关的事实认定采取尊重态度,对事实问题采用宽松的审查标准。大陆法系国家行政诉讼一般不区分事实问题和法律问题,都进行全面审查。我国应当重新思考人民法院的全面审查制度,对专业性和技术性强的行政案件,以及行政机关适用简易程序当场作出决定的案件,人民法院应当尊重行政机关对事实的认定。对一般案件事实,如果法律规定以具备某种性质为要件时,审查行政机关对事实性质的判断是否符合法律的规定。对于重大的或对当事人利益有重大影响的行政案件,进行全面审查。     

司法的限度：在司法能动与司法克制之间

我国法院从司法改革初期积极扩张司法权的一端,转变到面对社会矛盾复杂性而采取自我限缩策略的另一端,暴露出司法权运作边界模糊的问题。社会需求决定了司法的供给,但司法权的能力是有限的,其机能的发挥有赖于一定的条件,而且当事人人数的多少、案件的复杂程度等都会影响司法权的能力。司法权应当恪守自己的边界。对超越自身能力的事情保持克制,是司法权威的必要保证。     

政府横向权力配置新论——从结构功能主义角度的分析

在＂结构功能主义＂权力分立观看来,政府的立法权、司法权和行政权分别是一种政治性、法律技术性和兼具政治性与行政技术性的权力;为了实现相应的政府职能,这些权力应当由相应的政治性的机关（立法机关）、法律技术性机关（司法机关）和兼具政治性与行政技术性的机关（行政机关）来行使;为了保证各政府机关能够＂称职＂地行使相应的权力,各政府机关的组成人员、运作规则应当具备不同于其他机关和人员的制度设计。尽管当今世界各国存在国家性质和政权体制的不同,但是三种权力的性质却是永恒不变、超越国家界限和超越意识形态的。我国当前权力机关（民意机关）和司法机关（法院）的行政化倾向不利于国家职能的有效实现。     

美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.     

Codification of Administrative Law: The US and the Union

Abstract: The US Administrative Procedures Act of 1946 was engendered by partisan political conflicts. Initially judicial review of administrative rule-making under the act was extremely deferent. In the course of the 1960s and 1970s the federal courts, basing themselves upon the unchanged language of the statute, created a new body of administrative law characterised by very great demands on the agencies and very intrusive judicial review. This transformation was fuelled by partisan realignments, fear of technocracy and desire for greater transparency and popular participation in government decision-making. Because these same forces are now active in relation to the Union, it may be anticipated that similar tendencies toward a demanding procedural law of rule-making and high levels of judicial review will be felt as Union administrative law develops.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

Power,National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts

Even in a democratic society, the need for transparency must be balanced with an important countervailing interest: the occasional, legitimate need for government secrecy. This article, based on an examination of opinions in federal cases dealing with national security and transparency, explores how judges identified the main legal issues presented by a case and the legal factors or mode of legal interpretation used to reach or justify their conclusions. The article concludes that many of these opinions are as much about judges’ attempts to balance the judicial branch's power with the powers of the executive and legislative branches as they are about national security and transparency. Furthermore, the article contends these opinions have created an “architecture of power” that determines how national security information is controlled. The final section also suggests that judges should be mindful of the original architecture of power established by the Constitution and the First Amendment when writing their opinions.     

论法院处理环境纠纷案件中的司法能动

司法能动是法院在案件审理中,不因循先例和遵从成文法的字面含义进行司法解释的一种司法理念以及基于此理念的行动。我国法院在发挥司法能动性,处理环境纠纷案件方面作出了大量努力,为经济社会发展提供了司法保障。但法院在发挥司法能动性处理环境纠纷案件中仍然存在较大的问题。解决这些问题,必须把握法院在环境纠纷案件处理中司法能动的向度,落实司法独立,引导法官正确行使自由裁量权,努力培养环境司法专业人才,发挥法官适用法律的能动性。     

The Limits of Senatorial Courtesy

Because of senatorial courtesy, scholars typically assume that presidents defer to home state senators from their party when selecting judges for the federal courts. We challenge this view, arguing that presidents face structural incentives that encourage them to consult broadly with senators across the partisan and ideological spectrums in choosing nominees. Using new data on the fate of judicial vacancies on the federal district courts between 1947 and 1998, we show how institutional and political forces increase interested senators' leverage in choosing federal judges. Senatorial courtesy, we conclude, has its limits, given presidents' incentives to consult with institutionally empowered senators in selecting nominees.     

Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective

In this article, we examine factors that influence appellate supervision in the lower tiers of the federal judicial hierarchy. Drawing on the insights of agency theory, we develop a framework to assess the determinants of circuit panel decisions to affirm or reverse federal district court rulings. Our analysis of U.S. Courts of Appeals' published civil rights decisions over a 29-year period (1971–1999) offers support for several hypothesized relationships. As expected, the outcome of appellate review varied with the level of agreement between the preferences of the circuit (as principal) and the policy position of the trial court (as agent). In addition, we found that circuits were more likely to affirm trial court decisions that were contrary to the preferences of the federal district court judge, suggesting that circuit judges may rely on ideological signals when evaluating appeals before them. We also hypothesized that the monitoring activities of circuits would be influenced by individual circuits' relationship with their principal, the Supreme Court. Consistent with these expectations, panels were more likely to reverse district court rulings that were incongruous with the policy predisposition of the High Court. In addition, as Supreme Court scrutiny of a circuit increased, the likelihood of a circuit panel subsequently reversing a district court also increased. Although further inquiry is necessary to clarify the interpretation of this result, the finding does suggest that district courts are more likely to engage in decision making that deviates from circuit preferences when that circuit faces more intense supervision from the Supreme Court.     

深化改革背景下对司法行政化的遏制

司法行政化,即以行政的目的、构造、方法、机理及效果取代司法自身的内容,形成以行政方式操作的司法。法院司法运作的全过程均带有行政化色彩,表现为司法目的和价值的行政化、案件审判活动的行政化、上下级法院关系的行政化、司法人事制度和法院结构的行政化以及审判管理的行政化等。在给定的约束条件下,司法行政化可以弥补一线司法能力之不足,可以抗制外部干预。但其过度发展会妨碍依法治国,损害办案质量与效率,危及司法权威和公信力,阻碍法院工作的可持续发展。司法行政化的根源在于基本权力结构及其运行机制;司法功能设定的非司法化和资源配置的有限性,统一的人事管理制度和财政供应制度以及国家机能分化不足,亦为重要原因。遏制司法行政化需强化法院的司法审查功能、审判功能以及终局性纠纷解决功能;需阻隔行政性要素介入审判,建立审判独立的"二元模式";需在法院审判管理、司法行政管理、上下级法院业务管理上"去行政化"。     

审判中心视角下的行政诉讼制度构造

"以审判为中心"的政法政策同样适用于行政诉讼制度改革,它要求法院发挥自身司法能力和司法制度能力,有效地介入涉法行政争议之中,并藉此保护法益。在行政诉讼中,司法权与行政权之间是法律监督上的国家权力结构关系。法院优位于行政机关,法院作为独立裁判者指挥诉讼管理关系和裁判过程。以审判为中心的行政诉讼制度构造,应最大限度地发挥法院司法能力在解决行政争议上的优位角色,应完整地发挥行政诉讼法的制度能力,即发挥立法、司法解释、司法组织及指导性案例的制度功能。行政诉讼司法准入、行政机关负责人出庭应诉、诉讼管辖、庭审制度等,是否体现了"以审判为中心"的制度改革方向,主要看其是否有利于行政争议的实质解决和法益有效保护。"多元化纠纷解决机制"政策和行政行为合法性审查为中心的行政诉讼制度,影响了法院的诉讼角色和功能。回归司法权和诉讼制度本质,宜在行政争议、行政行为和法益之间构造出一致性的诉讼结构关系;宜从组织和体制改革转向程序改革,发挥行政程序和司法程序在塑造司法公正和司法效率上的作用。     

The Politics of Appointment and the Federal Courts'Role in Regulating America: U.S. Courts of Appeals Judgeships from T.R. to F.D.R.

Historians and political scientists have noted that appointments of judges to the U.S. Courts of Appeals are not determined by senatorial courtesy alone. What has not been adequately explained is why and when a president defers to a senator's choice rather than seek to control the selection. This article attempts to understand the politics of federal appellate court appointments. The author first identifies a major change in the work of the courts of appeals during the years 1900-1945—the growth in review of the actions of newly created federal regulatory agencies. Then, by examining Justice Department files and presidential correspondence, he discoveres three patterns of appointment emerging in the same period. The patterns vary with presidential perceptions of the role of the federal government and of the courts of appeals' ability to affect accomplishment of administration goals. Appointments during the first years of the presidencies of Theodore and Franklin Roosevelt and during the Harding and Coolidge administrations were dominated by patronage concerns. Those administrations yielded to the recommendations of senators and demonstrated no interest in the policy-making potential of these courts. In the two other patterns the White House played a more active role, with senators more often deferring to the president's selection. Concerns about professionalism dominated selections in Taft's and Hoover's administrations: because they recognized the policy importance of those judgeships but saw the role of government as limited, they sought judicial craftsmen who would make policy only incrementally. Policy concerns dominated selections during Wilson's administration and the latter years of both the Roosevelts' administrations: Justice Department officials screened nominees to determine their policy orientation, because federal appellate court judgeships were perceived as crucial policy positions that could affect the president's ability to implement his reform programs.     

The Judicial Transformation of the State: The Case of U.S. Trade Policy, 1974–2004

The recent shift in state policies from Keynesianism to neoliberalism was accompanied by a transformation in state structures. The case of trade liberalization in the United States reveals that this structural transformation is of a judicial nature. In 1974, supporters of free trade successfully shifted authority over the management of protectionist claims from Congress to quasi-judicial bodies in the U.S. executive; in 1994 , they successfully strengthened the dispute settlement mechanisms of the World Trade Organization. This judicial transformation indicates a shift from sites where decisions are made by way of political negotiations to sites where judges preside over legal disputes. In the article, I identify the political origins of these judicial transformations and discuss the factors that make judicial sites more favorable to neoliberal policies than political sites.     

法国土地征收公益性审查机制及其对中国的启示

在法国,只有国家可以为了公共利益的需要征收私人土地,并且按照司法最终原则,由行政法官判断土地征收的公用目的性。最高行政法院在长期审判实践中形成了"损益对比分析理论"。该理论的应用加强了对土地征收公用目的宣告行为司法审查的力度。在加强对行政机关裁量权司法监督的同时,损益对比分析机制并未超越行政行为合法性审查的界限,它为行政机关在多个合法方案间自由选择保留了足够的裁量空间。     

HIDDEN ALLOCATORS: Administrative Law Judges and Regulatory Reform

The 1132 administrative law judges now serving in twenty-nine of the most important agencies of the national government are among the least understood and least studied authorities in the American political system, yet they are among the most powerful authorities in the modern policy process. ALJs have undergone a repid development from the creation of the office of "hearing examiner" in the Hepburn Act of 1906 to the rpesent djay, when they hear cases cfomparable in importance to those heard by federal district judges. ALHs are selected through a merit procedure almost wholly controlled by the agencies in which they are employed and are subject to constant cross-pressures from their judicial role and their administrative masters. Perceived problems of biased selection procedures, conflicts of interest, and lack of public accountability have led critics in Congress and elsewhere to propose a variety of marginal reforms. The policy proposal that probably gets to the heart of the problem, however, is the creation of an Administrative Court of the United States.     

Gender,Critical Mass,and Judicial Decision Making

We examine the role of gender in legal decision making by applying critical mass theory to the U.S. federal district courts. We analyze whether behavioral differences manifest themselves in the decision‐making proclivities of male and female judges, contingent on the existence of a critical mass of female judges at a court point (i.e., each city in which a district court is located). Our results indicate that women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a court point. These differences are most significant in criminal justice cases; modest differences between men and women are also identified in civil rights and liberties cases. Gender is not significant in labor and economic regulation cases. These findings suggest that the increasing presence of women on the federal bench could have substantial policy ramifications in the American polity.