Theory and Practice of Legislation最新文献

{"title":"Legislative scrutiny in the United States: dynamic, whole-stream revision","authors":"Sean J. Kealy","doi":"10.1080/20508840.2021.1904568","DOIUrl":"https://doi.org/10.1080/20508840.2021.1904568","url":null,"abstract":"ABSTRACT Legislative drafting in the United States Congress is a dynamic process with many actors working to revise both a bill’s policy and language. Rather than a central drafting office or government agency responsible for drafting bills, legislative language and amendments come from many sources: Congressional committee staff, the House and Senate Offices of Legislative Counsel, special interest lobbyists, and executive agencies. The hope is that bills become stronger and better drafted as it moves through the process; but that is not always the case. In addition, Congress still does not use a single standard drafting style. Still, there have been improvements in recent decades. For example, the House of Representatives developed a preferred drafting style and created a manual to guide drafters. However, Congress can and should do more to improve legislative quality. In this article I suggest several reforms: empowering the committee chairs to not just guide legislation through Congress, but promote better quality legislation; requiring greater drafting style standardisation; creating new materials and trainings to assist legislative actors, particularly committee staff, to recognise defective drafting and appreciate the value of careful drafting practices; and creating a advisory commission that will bring together key drafting participants to propose further reforms.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1904568","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43414564","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":"Parliamentary scrutiny of the quality of legislation in Spain. The role of parliamentary clerks","authors":"Piedad García-Escudero","doi":"10.1080/20508840.2021.1904565","DOIUrl":"https://doi.org/10.1080/20508840.2021.1904565","url":null,"abstract":"ABSTRACT This article examines the case of Spain as part of a broader comparative study on parliamentary scrutiny of the quality of legislation, looking in particular at the role played by the Letrados de las Cortes Generales, the corps of high-ranking parliamentary civil servants, or clerks, of the Spanish bicameral legislature. As in many other countries, the Spanish political landscape has witnessed an increasing polarisation in the last decade which has led to the fragmentation of the Congreso de los Diputados, or Lower House, once dominated by a two-party system. This has severely affected the parliament´s legislative function. Fewer laws are passed, and there has been a shift in the origin of legislative initiative. Government bills are no longer so easily passed, whereas non-governmental bills have more chances now of becoming laws than before. Against this background, and given the lack of specific parliamentary bodies or guidelines for the scrutiny of the quality of legislation, the Letrados de las Cortes Generales seem essential in contributing to improving the quality of bills, whichever its origin, throughout the legislative procedure, until their passing into laws. This article explores at length their role and the different steps and ways in which they do this. It also analyses the progress in setting standards and bodies for Legislative Drafting by the Spanish Government since, in the absence of specific ones for parliament, Government’s Guidelines are usually applied by the Letrados in their work. To illustrate the current debate on the quality of legislation, the evolution of the Spanish Constitutional Court’s rulings on the matter is also briefly outlined. In conclusion, and though limited to legal and technical aspects, the Letrados de las Cortes Generaleś scrutiny of bills does contribute, to a large albeit imperfect extent, to improving the quality of legislation in Spain.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1904565","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48080285","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":"Models of parliamentary scrutiny of the quality of legislation. How different drafting models and forms of government shape them","authors":"E. Albanesi","doi":"10.1080/20508840.2021.1904553","DOIUrl":"https://doi.org/10.1080/20508840.2021.1904553","url":null,"abstract":"ABSTRACT The aim of this article is to set the scene for the following special issue, which contains four papers relating to research on parliamentary scrutiny of the quality of legislation in different jurisdictions. In Continental Europe, Parliaments (although in a rather different range: more in countries such as Italy and Spain, less in countries such as Germany) have developed a more-in-depth approach in scrutinising the quality of legislation, i.e. a set of tools, standards and bodies to scrutinise it downstream, than that of Westminster jurisdictions. In the latter, a high-standard quality of legislation is guaranteed upstream by having bills drafted by Parliamentary Counsel, although in the United Kingdom there is currently a debate concerning the opportunity to strengthen parliamentary scrutiny of the quality of legislation. The hypotheses of this research were that the aforementioned models of parliamentary scrutiny are differently shaped in those jurisdictions due to the drafting model and the form of government established there. Against this background, the United States Congress is a very different animal: due to the peculiarities of the legislative process in the presidential system, the scrutiny in Congress relies on multiple parties. The reason why articles have been commissioned here is to test now on a larger scale the aforementioned hypotheses, which have already been partially proved in a previous article mainly concerning Italy (E. Albanesi, ‘Parliamentary Scrutiny of the Quality of Legislation within Europe’ (2021) Statute Law Review). This time the analysis will focus on two Continental European parliamentary systems (Spain and Germany), one jurisdiction belonging to the Parliamentary Counsel/Westminster model (Canada) and one presidential system (the U.S.). The articles published here seem to support on a larger scale the aforementioned hypotheses. The article on Canada also helps reflect upon the opportunity to strengthen parliamentary scrutiny of the quality of legislation in Westminster jurisdictions.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1904553","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42227865","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":"The crisis of confidence in legislation","authors":"Daniel Hult","doi":"10.1080/20508840.2021.1883818","DOIUrl":"https://doi.org/10.1080/20508840.2021.1883818","url":null,"abstract":"Die Beiträge des Sammelbandes beschäftigen sich mit der Frage, wie das Vertrauen in den Staat und seine Gesetzgebung wiederhergestellt werden kann.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1883818","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43610752","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":"Promoting (religious and political) diversity through legislation in Northern Ireland","authors":"Ronan Cormacain","doi":"10.1080/20508840.2021.1896255","DOIUrl":"https://doi.org/10.1080/20508840.2021.1896255","url":null,"abstract":"ABSTRACT Northern Ireland is a society which has suffered communal strife for decades, a result of divergent political and religious identities. Since the Good Friday Agreement in 1998, the violence associated with this tension has receded. This article looks at some of the different areas where there has been inter-communal conflict: political structures, elections, policing, language, employment and treatment of victims. It identifies the solutions and identifies the tools to implement those solutions. Legislation has been used as a tool of choice to regulate that diversity, to provide protection and to solve problems resulting from that diversity. Legislation is not the inevitable tool to use, softer forms of regulation are also available. There are two suggested reasons for the reliance upon legislation. Firstly, in the absence of trust between political parties, legislation offers an enforceable solution which is legally binding upon all parties. Secondly, legislation can be seen as a concrete and tangible achievement.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1896255","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47655080","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":"Does the law think that black lives matter? A reflection upon the role of the public sector equality duty in promoting racial equality before the law","authors":"Michael Abiodun Olatokun","doi":"10.1080/20508840.2021.1909367","DOIUrl":"https://doi.org/10.1080/20508840.2021.1909367","url":null,"abstract":"ABSTRACT Racism is often perceived as a conscious choice an individual makes to abuse another, or an explicit statement that a group of people are inferior to another. Less often is racism construed as a product of institutional culture. This inability to accurately depict the problem has stunted the ability of lawmakers to craft legislation that will adequately combat racism. This paper explores attempts in the recent past that have provided remedies for those subject to racism rather than addressing its systemic causes. S149 of the Equality Act in the United Kingdom bucked this trend by obligating public authorities to take proactive steps to eliminate discrimination. This paper examines the challenges the provision has faced, explores how it could work to prevent racism in the coming years, and argues that it remains important today.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1909367","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48342168","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":"Introduction to special section on Legislation and Diversity","authors":"Felix Uhlmann, Mauro Zamboni, Ronan Cormacain","doi":"10.1080/20508840.2021.1909368","DOIUrl":"https://doi.org/10.1080/20508840.2021.1909368","url":null,"abstract":"Legislation pursues objectives. Most laws are aimed at eliminating social problems or improving living conditions. The task of legislative theory is to process the functions of law-making and to provide practical means to make laws effective and proportionate. Diversity is one of the most controversial and demanding objectives of the recent past. The content goes beyond mere equality issues, but is of course committed to them. It encompasses the conscious handling of diversity in society, not only as a matter of fairness but also in recognising the diverse achievements and experiences of people and understanding them as potential. The central question posed by this special issue is – what is the role of regulation in promoting, protecting or advancing diversity? We proceed on the assumption that diversity is a good thing and then consider the function of regulation in effecting societal change to achieve this aim. Is this an area which is appropriate for regulation, or is it an area where society or the market will inevitably reach the end result in the absence of state intervention, making regulation superfluous or fruitless? If we do have state intervention in the form of regulation, what type or types of regulation are appropriate or most likely to achieve that end goal? Diversity literally comes in many shapes and sizes. In this special issue we analyse just some types of diversity: gender diversity (in the context of male and female), religious and political diversity and racial diversity. But even this attempt to consider diversity is not itself diverse, as we don’t consider diversity in terms of trans-identities, or diversity of those with a disability, or diversity in terms of sexual orientation. Even the very language of legislation itself can be a tool to promote or restrict diversity. The world-wide attention now being given to racial justice, triggered by the Black Lives Matter movement, highlights the importance of anti-discrimination laws and legal protections for diversity.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1909368","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49467171","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":"Promoting gender equality through regulation: the case of parental leave","authors":"Miriam Rocha","doi":"10.1080/20508840.2020.1830565","DOIUrl":"https://doi.org/10.1080/20508840.2020.1830565","url":null,"abstract":"ABSTRACT Parental leave regulation is not gender-neutral. Policies that encourage fathers’ leave-taking relate to the enhancement of child well-being, caring fatherhood, and gender equality among the couple and in the workplace. There are various designs of parental leave policies, depending on a combination of factors, such as length, income replacement rate and the compulsory nature of leave. This article draws on data from the 16th International Review of Leave Policies and Related Research (2020) and analyses main features of parental leave policies in seven countries (Germany, Poland, Portugal, Sweden, Israel, Japan and the United States), confronting it with recent research on the use of parental leave in those countries. Subsequently, the article provides evidence for the benefits of fathers’ uptake of paternity and parental leave and points out three features that leave policies must incorporate to promote gender equality and notes the importance of employers’ self-regulation.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1830565","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42969358","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":"Lawmaking in times of domestic and foreign-policy instability (the Russian experience)","authors":"Roman Rouvinsky","doi":"10.1080/20508840.2020.1841986","DOIUrl":"https://doi.org/10.1080/20508840.2020.1841986","url":null,"abstract":"ABSTRACT The article is devoted to the phenomenon of the contemporary restrictive and prohibitive legislation that originates from the conditions of domestic and foreign-policy instability. It primarily focuses on the Russian experience, because the current Russian legislation is an obvious example of legislation exercised with the help of restrictive and prohibitive rules. Such recent and much-talked-of acts as the Dima Yakovlev Law, that bans the U.S. citizens from adopting Russian children, and the ‘Foreign Agents’ Law, that has stigmatised Russian NGOs receiving foreign donations and introduced new forms of control over them, are examined. The author suggests that we should call such legislation ‘exceptional’, distinguishing it from the emergency laws. Unlike the latter, exceptional laws do not contain any regulations concerning the situations of armed conflicts, civil unrest or natural disasters; they have ordinary status and place in the legal system and are adopted in an ordinary procedure. It is claimed that exceptional lawmaking radically transforms the whole legal system: being perceived as normal, exceptional laws gradually change the entire system of legislation that previously did not have any exceptional character and in which obligations and prohibitions did not dominate. Particular attention is paid to the use of exceptional laws as tools of foreign policy and as weapons in the present international conflicts.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1841986","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41362683","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":"Gender equality and legislative evaluation of gender-based laws in Korea","authors":"Kyungho Choi","doi":"10.1080/20508840.2020.1819564","DOIUrl":"https://doi.org/10.1080/20508840.2020.1819564","url":null,"abstract":"ABSTRACT Korea’s Constitution, Article 11(1) prescribes, ‘All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status’. The Constitution prescribes equal protection of citizens regardless of their gender. In this article, the efforts and tools for ensuring gender equality in Korea are introduced. The discussion mainly focuses on gender impact assessment and how it improves equal protection in Korea. Gender impact assessment is necessary because it contributes to policy improvement by removing gender discrimination in law and policy. The assessment also helps in preparing a substantial policy that guarantees gender equality through equal policy benefit, equal participation, and equal budget distribution for men and women. This article also covers the role of the Constitutional Court of Korea as a reviewer of the constitutionality of gender-based laws. The Constitutional Court has the authority to judge a law as unconstitutional. This can be seen as a form of legislative evaluation in Korea.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1819564","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45768758","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}