Legislative Choices Research Articles

Research on Strengthening China's Economic Losses from Ship Oil Pollution Based on Compensation Mechanisms

The oil pollution compensation system in China was established late, and the design of the legal system is not perfect, which exposes many problems in the practice of claim settlement. This paper analyzes the present situation and problems of compensation mechanism for oil pollution damage from ships in China, and draws lessons from the legislative experience of Canada and the United States, and puts forward some suggestions for improvement. The specific contents include the legislative status and existing problems of compensation for oil pollution damage from ships in China, the relevant legislative status of representative countries, the comparison of three major international compensation systems, and the legislative choice and specific system suggestions of China. By using the method of literature analysis, this paper systematically analyzes the legislative status, advantages and disadvantages of compensation for oil pollution damage from ships in various countries through the study of relevant legal documents and practical cases at home and abroad. Through comparative study and drawing lessons from international experience, it is suggested that China adopt a dual-track compensation mechanism.

The role of Criminal Justice in dealing with past atrocities in the Spanish and Argentine transitions: common grounds, but different pathways

ABSTRACT The comparative study of relevant Argentine and Spanish legislation and jurisprudence offers a perfect picture of the debate surrounding the role and limits of Criminal Law in transitional contexts. An analysis of these two experiences, and of the different choices they have taken, allows to point out three controversial aspects: firstly, the clash between legislative choices (often implying amnesties or similar measures) and judicial decisions that may somehow attempt to ‘correct’ the former. Secondly, the concerns raised by this creative judicial activity, in terms of its compatibility with the principles of legality and non-retroactivity and the prohibition of arbitrariness. Thirdly, the extent of the duty to prosecute and punish gross human rights violations vis-à-vis the limits of Criminal Justice. The article suggests reminding that, in extraordinary (transitional) contexts, Criminal Justice can and should be combined with other complementary mechanisms aimed at granting truth, justice, reparation and the building of a shared memory.

Modeling e‐Truck adoption for sustainable transport in Jordan: A system dynamics approach

AbstractThis study has developed a model that predicts the quantity of CO2 emissions reduced and the adoption of e‐Trucks until the year 2100 in Jordan. Using system dynamics software (Powersim) and business intelligence tools (Microsoft Power BI), the most significant factors affecting three modules: environment, government, and customer were examined. Twelve scenarios were modeled during the study (three factors and four cases for each factor). The factors were marketing effectiveness, environmental awareness, and government acquisition subsidy, and their values were (0.2, 0.3, 0.4, 0.5), (0.3, 0.4, 0.5, 0.6), and (500, 1500, 3000, 6000 Jordanian Dinar—JOD), respectively. Under normal conditions, with a marketing effectiveness of 0.2, environmental awareness of 0.3, and a subsidy of 500 JOD, the annual sales of e‐Trucks and Conventional Fuel Trucks (CFT) will break‐even in 2052 in Jordan. The cumulative CO2 emissions reduction at the same year will be 6165.213 Tons. Among the three factors, marketing effectiveness was found to have the highest impact followed by the environmental awareness and last came the acquisition subsidy. Based on our findings, it is recommended that policymakers prioritize improving marketing efforts to accelerate the shift towards e‐Trucks, raise environmental awareness among consumers, and provide subsidies for acquisition of e‐Trucks in Jordan. Additionally, further research is needed to incorporate other factors, such as ICT infrastructure, technology maturity and other social factors that can affect the adoption of e‐Trucks. The study's originality lies in its focus on e‐Trucks, a relatively underexplored area in the sustainable transport literature, especially in the context of Jordan as many other emerging nations. The practical implications include leading the switch to e‐Trucks, identifying infrastructural needs, and informing legislative choices. By analyzing long‐term dynamics and encouraging the deployment of e‐Trucks, it seeks to lower CO2 emissions, enhance air quality, and promote a sustainable transportation system in Jordan.

EU financial market regulation a decade from the financial-crisis-era reforms: crisis, uncertainty, and capacity

Abstract This article reflects on the effectiveness of European Union (EU) financial market regulation, a decade or so after the closure of the EU’s massive financial-crisis-era reform programme. To do so, it considers the first significant test of the financial-crisis-era reforms: the March 2020 period of acutely elevated financial stability risk as the COVID-19 pandemic intensified, global markets roiled, and the investment fund sector experienced large-scale disruption. It relates the EU’s broadly successful management of this period to, first, the resilience of the legislative choices made and refined over the financial crisis era as regards investment fund regulation and, secondly, to technocratic action, by the European Securities and Markets Authority (ESMA) and the European Systemic Risk Board (ESRB), that facilitated rule amplification, risk monitoring, supervisory coordination, and supervisory convergence and thereby supported the earlier legislative choices. Drawing on the March 2020 experience, the article goes on to consider the capacity of EU financial market regulation more generally to manage what are increasingly dynamic risks to financial market stability. It identifies a strengthening of the EU’s capacity in this regard, but also persistent and intractable risks to this capacity, including as regards legitimation.

Per i cinquant’anni della Costantiniana. Tra bilanci e prospettive: Oriente e Occidente in dialogo

Abstract This paper provides the «Cronaca» of the XXVIth International Conference of the Accademia Romanistica Costantiniana, held in Spello from 15 to 17 June 2023. The event marked an important milestone: the 50th anniversary of the Research Centre of the University of Perugia. In consideration of this special anniversary, the inaugural session was intended to recompose the historiographical lines drawn by the «Accademia» in this fifty-year period and to outline new research perspectives. In the subsequent sessions, the more than twenty-five papers that followed dealt with relations between East and West in a multiform perspective: in particular, the mobility of people, the circulation of legal knowledge and the comparison of divergent legislative choices between the partes Imperii were explored.

An analysis of the legislative Choice of Personal Information Protection in the era of Big data

In the background of the rapid development of modern science and technology, artificial intelligence, the Internet of things, blockchain, cloud computing and other advanced technology has been widely used in social construction and economic aspects of life, our social economy has also entered the era of big data. Nowadays, governments and enterprises of all countries, after clearly recognizing the rich value of personal information, begin to combine their own needs with the use of information technology software mining application and storage management, but because the security of personal information is not perfect, so often personal information security suffered incidents, which not only threatens the personal privacy of the information subject, Also reduces the level of information security in every, has a direct influence to social stability and development. Therefore, on the basis of understanding the current research status of legislation on personal information protection in the era of big data, and according to the management framework of big data network operation platform, this paper focuses on the effective measures for the selection of legislation on personal information protection based on the online behavior analysis ability of a university, so as to make full use of rich information resources.

Neustavnost Zakona o opštem upravnom postupku - Ustavni sud kao 'pozitivni zakonodavac'

The Constitutional Court of Serbia declared Article 178(3) of the General Administra-tive Procedure Act (GAPA) unconstitutional. This provision sets an objective deadline for reopening of the administrative procedure. The Constitutional Court found that this deadline is unconstitutional when the procedure is reopened as a result of the Constitutional Court decision on constitutional appeal or the ECtHR judgment determining that a decision rendered in an administrative proceeding violated a right guaranteed by the Constitution or the European Convention on Human Rights (ECHR). Unfortunately, the said GAPA provision prescribed an objective deadline for other 10 reasons for reopening of the procedure. By declaring this provision unconstitutional, the Constitutional Court stepped out of its role of the 'negative legislator' and made a legislative choice instead of the legislator, by removing par-ts of the norm that are not inconsistent with the Constitution. When making this decision, the Constitutional Court relied on its previous decisions, which removed the same provisions on the objective deadline for reopening of the civil litigation and misdemeanor proceedings. The Constitutional Court ignored the fact that this is an administrative procedure and, erroneously, referred to the inconsistency of the GAPA with the provisions of the Constitution and the ECHR, which guarantee the right to a fair trial, judicial protection and legal remedy. The second, equally unfounded, premise on which the Constitutional Court based its decision is the be-lief that the abolition of the objective deadline for reopening of the administrative procedure was necessary in order to enable the removal of the consequences of violations of the rights determined by the Constitutional Court or the ECtHR. By leaving only a subjective deadline, which is difficult to prove in practice, the level of legal certainty has been lowered. Finally, in its case law, the ECtHR considered that the existence of a limitless possibility of the official removal of final legal acts constituted a violation of Article 6 of the ECHR. The Constitutional Court's abolition of the objective deadline for reopening of the procedure has made this possible.

The New Croatian Copyright Act – A Mixed Bag of Novelties and Quandaries

Abstract Croatia’s accession to the EU in 2013 left a mark on the Croatian Copyright Act. This mark was in the form of several amendments which aimed to implement the EU copyright harmonising measures. This implementation led to an uneven approach to copyright and related rights protection by prioritising implementation of the acquis communautaire over internal coherence and balance of rights. The new Croatian Copyright Act, adopted in October 2021, restores the internal coherence by substantially improving the layout of the act. Nevertheless, the formulation of some of the provisions it contains are inconsistent with international law, EU law and the Croatian Constitution. This paper focuses on three problematic legislative choices in the new Croatian Copyright Act – the gold-plating provision of the press publishers’ right, the automatic transfer of copyright made within public or state-owned institutions, and the nationalisation of audio-visual works.

Legislating Mandatory Reporting of Child Abuse in India and China: A Divergence of Legislative Choice

Mandatory reporting is used as a tool for early identification of child abuse by countries around the world. However, there is variation in terms of the legislative models followed. The two models most commonly followed are universal mandatory reporting and stakeholder specific mandatory reporting. India and China joined the bandwagon and introduced legislation on mandatory reporting over a decade ago. While India has adopted the ambitious model of universal mandatory reporting, China has taken a more incremental and experimental approach with stakeholder-specific mandatory reporting. The paper aims to differentiate the legislative approaches taken by the two countries for introducing mandatory reporting for child abuse, by delving into the legislative history, legislative provisions, and implementation challenges for mandatory reporting in both jurisdictions. The paper does not comment on the sanctity of mandatory reporting, but is limited to a comparative analysis of the legislative strategies taken by India and China.

입법적 책임의 실질적 실현을 위한 시론적 논의

This article is an exploratory discussion for practically realizing the legislative responsibility that legislators have to bear according to the Constitution, and aims to explore the structure and the particularities of legislative responsibility. Legislative responsibility can be defined as a comprehensive responsibility based on the obligations imposed on legislators by the Constitution. In order to explore the particularities of legislative responsibility, the basic structure and essence of legislative responsibility and the particularities of constitutional responsibility are examined preconditionally.
 Since there are legislative obligations that the Constitution imposes on the legislator, it can be said that legislative responsibility also exists. However, the particularities of the constitutional responsibility due to the constitutional characteristics and the particularities of the legislative responsibility due to the legislative characteristics act as a difficulty in realizing the legislative responsibility. In particular, the legislative responsibility is also limited because of the inability to impose unsatisfiable obligations on individual legislators who are fully exposed to the complexity of the external environment, and the normatively and factually impossibility of determining violations of legislative obligations.
 For this reason, in order to practically realize the legislative responsibility, it is necessary to preemptively reduce the risk of violation of the legislative obligations as much as possible. In other words, rather than ex post determining whether a specific legislative procedure or legislative output violates the legislative obligations, a preemptive mechanism should be prepared to minimize the risk of violating the legislative obligation in the course of the legislative process. This avoids leaving the legislative responsibility as a nominal responsibility or realizing it solely as a political responsibility by the people. A way to reduce the risk of violation of legislative obligations is, for example, to document and disclose all information and reasons on which individual legislators base their judgments when making legislative choices. This not only improves the political responsibility by the people, but can also function as a means for individual legislators to be exempted from the responsibility for violations of legislative obligations.

Ghosts of 1932: The Lost History of Estate and Gift Taxation

In 1932, the United States confronted a bleak economic landscape. Amid the financial carnage caused by the 1929 stock market crash and the ensuing Great Depression, economic activity had ground to a halt, tax revenues had plunged, and the nation’s debt had soared. The declining government revenues and soaring debt threatened both the viability of American industry and the stability of the nation’s credit rating. Congress took bold action that year, enacting a massive tax bill (“the Revenue Act of 1932”) designed to balance the federal budget without further stifling economic growth.As has been true through nearly a century of tax legislation, Congress included estate and gift taxes as a component of the Revenue Act of 1932. The architects of the 1932 estate and gift tax provisions made a number of crucial legislative choices that fateful year, implicating issues of tax policy that remain as relevant today as they were some eighty years ago. Yet, histories of American taxation typically devote frustratingly little analysis to the specific estate and gift tax provisions included in the Revenue Act of 1932. As a result, despite their continued relevance, the details of key decisions, and the motivations of those who made them, effectively have been lost to history.In this paper, I seek to reclaim this lost history of estate and gift taxation. While the ensuing analysis certainly will enable us to more fully appreciate the events of 1932 and evaluate the actions Congress took in that fateful year, my inquiry is not of mere historical interest. Rather, the choices made in 1932 have helped shape the fundamental structure of U.S. estate and gift taxation for nearly eight decades, including our modern estate and gift tax code. Accordingly, understanding the events of 1932 can help us to understand why our estate and gift taxes operate the way they do as well as help inform future debate about the optimal structure of our wealth transfer tax system.

The Voter ID Debate: Policy Positions and Legislative Choices

The Voter ID Debate: Policy Positions and Legislative Choices

Planning and prioritizing of energy retrofits for the cities of the future

In the cities of the future, public administrations play a key role both because they implement political and legislative choices, and because they must represent the virtuous example to follow. Related to the planning and prioritizing of public buildings energy retrofits, public administrations must support a transition process. In this viewpoint, authors proposed an approach by defining three postulates, or pillars, based on the concept of transdisciplinary, that is knowledge, planning and sharing of the city. These pillars could have a significant impact and positive effect in a number of areas and could bring to economical, social and environmental sustainability. It also encourages the development and transfer of knowledge and technology in the main topic of the cities of the futures.

Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws

Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool, are the product of a cynical legislative choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.

Sincere Cooperation, Mutual Trust, and Mutual Recognition in Social Security Coordination

This article looks into the meaning of the concepts of sincere cooperation, mutual trust, and mutual recognition in EU social security coordination. It analyses the legislative choice of coordination as the main regulatory mechanism in the field, and examines the role of administrative cooperation. Furthermore, the article highlights the challenges that arise in situations where mutual recognition is required under the Regulations, as in connection with portable documents relating to the posting of workers. It also considers the limits to mutual trust via the principle of prohibition of fraud and abuse of rights established in the case law of the CJEU on free movement. In the last few years, this principle has been extended into the field of social security law, notably in Altun. In this way, the coordination regime does not require totally blind trust: rather, it balances the Member States' interests of maintaining the integrity of their social security systems with the Union interest of simplifying free movement. As in other fields of EU law relating to free movement, the mutual trust between the Member States in social security coordination may therefore be set aside in extraordinary cases.

State Aid Law as a passepartout: Shouldn’t We Stop Taking the Effect on Trade for Granted?

The present contribution addresses the excessive amount of discretion left to the EU Commission (and Courts) in defining the enforcement priorities in the field of EU State aid Law, by singling out one element of the (inherently vague) the notion of State aid, namely the effect on trade between member States. The approach taken by the Commission’s practice and the ECJ case law in this field ends up building a rather unpredictable legal framework. This risks unreasonably undermining both member States’ legislative choices in fields not necessarily falling under an EU competence, and undertakings’ legitimate expectations.

Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes.

This Article, contributed to a symposium on Commerce, Institutions, and Consent held at the University of Oklahoma Law School on October 19th, 2019, explains how three distinct legal developments are on a collision course. The criminal law of sexual assault has evolved to focus primarily on negative sexual autonomy, but there is no normative consensus on just what “consent” means, nor does typical statutory language suggest considered legislative choice from among the possible meanings. Meanwhile, time has reinforced the Supreme Court’s elevation of positive sexual autonomy above ordinary constitutional interests in Lawrence v. Texas. Finally, the Court’s decisions in Johnson and Dimaya have resolved decades of uncertainty in favor of a robust version of the void-for-vagueness doctrine. Conclusory statutory condemnations of sex without consent therefore have become plausible targets of facial constitutional challenges. The Article discusses the looming collision and offers ways to mediate the emerging conflicts among the values of negative autonomy, positive autonomy, and legality.

Red list of threatened vascular plants in Italy

Italy has a rich natural heritage, which is dangerously under pressure. In recent years, there is an increased awareness of the crucial role of plants in ecosystem functioning and in providing ecosystem services. Consequently, an updated Red List of the Italian vascular flora was compiled in this work, at the request of the Ministry for Environment, Land and Sea Protection, with the scientific support of the Italian Botanical Society. The IUCN Red List criteria were applied to 2,430 Italian native vascular plant taxa to assess their current extinction risk and to highlight the major threats affecting the Italian flora. Our results revealed that 54 taxa (2.2% of the assessed taxa) are extinct or possibly extinct at regional level, while 590 taxa (24.3%) were assigned to a risk category. Moreover, 404 taxa (16.6%) were categorized as Data Deficient. The Italian vascular flora is primarily threatened by habitat modifications due to anthropic disturbance and, especially, to agriculture, tourism and residential development. Coastal areas and lowlands, where anthropogenic impacts and ecosystem destruction are more pronounced, host the greatest number of extinct or declining taxa. Our results represent an important baseline to establish conservation priorities, legislative choices and intervention strategies on a national scale.

Danger! Glyphosate may Expose Weaknesses in Institutional Systems: EU Legislation and Comitology in the Face of a Controversial Reauthorisation

The 2017 glyphosate reauthorisation process has exposed key weaknesses of the EU’s institutional system. First, the role of Germany as Member State rapporteur and the subsequent decision to appoint a group of Member States to form the Assessment Group on Glyphosate (AGG) suggest that the nature of scientific assessments become blurred. These assessments are apparently not just purely objective, science-based and procedural elements of the authorization procedure, but require support from a significant number of Member States as well. Second, the arduous comitology trajectory in the glyphosate reauthorisation process has caused the Commission to initiate questionable changes to comitology. These changes would corrupt the coherence of the EU’s legislative system in general and the constitutional distinction between delegated and implementing acts in particular. Moreover, they would overlook the more obvious solution of relying more on discretion on the part of the Commission. Lastly, the glyphosate reauthorisation has questioned the dichotomy between legislation and executive rule-making, an equally central element of the EU’s constitutional order. This dichotomy is based on a distinction between essential elements that belong to the legislative domain and non-essential element which are more technical in nature. It has been claimed that weighing the economic benefits of pesticides against the health and environmental costs associated with their use is in essence a legislative choice. This claim highlights not so much the practical problem of how to draw the line between political and technical decision-making, but rather denies the very meaning of the dichotomy altogether. Yet, the current system on the placing on the market of plant protection products – based on the legislation providing the general framework and the executive applying this in concrete cases – is certainly not devoid of coherence and logic.

Shattering Myths: The Curious History of the Bulgarian Law of Obligations

While Bulgarian scholars concur that Bulgaria’s Law of Obligations and Contracts, which was enacted in 1950 and which is still in force today following cosmetic changes in the early 1990s, is an original Bulgarian legal text, archival and comparative research shows that it is heavily based on the Italian Codice Civile of 1942. Why would a communist country seek inspiration in a country with a Fascist ideology? Exploring the reasons behind this legislative choice as well as the reasons why this ‘dark’ secret was buried for so long challenges traditional taxonomies of comparative law, reveals the peculiar patterns of legal change, including the key role of the legal scholar in the process, and demonstrates the power of comparative law in shattering myths in legal history.