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서울대학교 법학연구소> Journal of Korean Law> The Implementation Gap in Environmental Law

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The Implementation Gap in Environmental Law

( Daniel A. Farber )
  • : 서울대학교 법학연구소
  • : Journal of Korean Law 16권1호
  • : 연속간행물
  • : 2016년 12월
  • : 3-32(30pages)

DOI


목차

I. Introduction
II. Implementation Shortfalls
III. Creative Implementation
IV. Conclusion

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초록 보기

The gap between legislative expectations and actual outcomes is of central importance to the legal regime. Much of the work of environmental lawyers involves compliance or enforcement efforts, not rulemaking. Even in terms of the issuance of environmental rules, there can be substantial deviations between what the lawmaker expected and what actually takes place. This Article discusses two types of gaps between the statutory design and actual implementation. In some situations, something that is legally mandated simply fails to happen. Deadlines are missed, standards are ignored or fudged, or enforcement efforts misfire. The result is incomplete implementation, falling short of the statutory mandate. For this reason, environmental laws often fail to fully achieve the intended outcome. Part II of the Article is devoted to understanding the scope of this implementation shortfall and considering possible ways of controlling it. Part III turns to a different aspect of implementation: the ability of agencies and even regulated parties to devise new methods of achieving statutory goals that were not anticipated by the legislature. For instance, if the designated means of reducing emissions proves impractical, the agency may shift to an alternative mechanism. More boldly, the agency may use statutory language designed for one problem (conventional air pollution) to address another (climate change). This type of creative implementation is different in spirit than the implementation shortfalls discussed earlier. What they have in common is that both of them differ from the expectations by the statute. Mismatches between implementation and statutes produce useful results, but risk doing damage to our concept of the rule of law. Widespread noncompliance with formally binding requirements undermines the concept that good citizens -- and even more so, governmental officials -- obey the law. For this reason, although it may be socially beneficial in some of its guises, creative implementation needs to be held within a reasonable interpretation of the statutory language.

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  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 반년간
  • : 1598-1681
  • :
  • : 학술지
  • : 연속간행물
  • : 2001-2017
  • : 223


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1The Implementation Gap in Environmental Law

저자 : ( Daniel A. Farber )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 3-32 (30 pages)

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The gap between legislative expectations and actual outcomes is of central importance to the legal regime. Much of the work of environmental lawyers involves compliance or enforcement efforts, not rulemaking. Even in terms of the issuance of environmental rules, there can be substantial deviations between what the lawmaker expected and what actually takes place. This Article discusses two types of gaps between the statutory design and actual implementation. In some situations, something that is legally mandated simply fails to happen. Deadlines are missed, standards are ignored or fudged, or enforcement efforts misfire. The result is incomplete implementation, falling short of the statutory mandate. For this reason, environmental laws often fail to fully achieve the intended outcome. Part II of the Article is devoted to understanding the scope of this implementation shortfall and considering possible ways of controlling it. Part III turns to a different aspect of implementation: the ability of agencies and even regulated parties to devise new methods of achieving statutory goals that were not anticipated by the legislature. For instance, if the designated means of reducing emissions proves impractical, the agency may shift to an alternative mechanism. More boldly, the agency may use statutory language designed for one problem (conventional air pollution) to address another (climate change). This type of creative implementation is different in spirit than the implementation shortfalls discussed earlier. What they have in common is that both of them differ from the expectations by the statute. Mismatches between implementation and statutes produce useful results, but risk doing damage to our concept of the rule of law. Widespread noncompliance with formally binding requirements undermines the concept that good citizens -- and even more so, governmental officials -- obey the law. For this reason, although it may be socially beneficial in some of its guises, creative implementation needs to be held within a reasonable interpretation of the statutory language.

2Habeas Corpus in the Anglo-American Legal Tradition

저자 : ( Amanda L. Tyler )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 33-65 (33 pages)

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The habeas corpus provision in the United States Constitution, known as the Suspension Clause, has long confounded courts and scholars as to its intended purpose. The wording of the Clause seems to promise the availability of “[t]he Privilege of the Writ of Habeas Corpus” - or, at least preclude the United States Congress from undermining that privilege where it is otherwise available unless Congress takes the dramatic step of enacting suspension legislation. The very same Clause, recognizing the extraordinary nature of suspension, precludes the legislature from adopting such a state of affairs except in the face of rare and dire circumstances - namely, “Cases of Rebellion or Invasion.” But beyond these apparent truths, numerous questions going to the nature and purpose of the habeas clause remain. To tackle the range of questions going to the role and meaning of the Suspension Clause in the United States constitutional framework requires careful study of the backdrop against which the Clause was adopted in order to make sense of what those who drafted and ratified the Constitution hoped to achieve by its inclusion. Although many argue over whether history should be the determinative factor in resolving constitutional questions as they arise today, no one seriously questions that history is deeply relevant to debates over the Suspension Clause. Indeed, Chief Justice John Marshall declared long ago that understanding the role of habeas corpus in the American Constitution requires looking to the privilege`s origins in English law. As he phrased things in discussing “this great writ …, [t]he term is used in the Constitution, as one which was well understood.” Further, modern Supreme Court jurisprudence still trains our attention on the Founding period, positing that “`at the absolute minimum,` the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified.” Accordingly, this article explores the relevant historical backdrop to the Founding period before carrying the story forward to chronicle how the Suspension Clause has been interpreted during important periods in American history, sometimes correctly and - as will be seen - sometimes incorrectly.

3Measures to Realize Sustainable and Efficient Justice from the Perspective of Information and Communications Technology Focusing on the Korean Court

저자 : ( Hoshin Won )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 67-91 (25 pages)

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The United Nations 2030 Agenda for Sustainable Development with 17 goals calls for a renewed global partnership to foster transformative changes applicable to all countries. Goal 16, the provision of justice for all, can be the key linkage with law and jurisprudence. The Korean Courts share the idea of justice for all with the United Nations. The Korean Judiciary paid continuous efforts by means of Information and Communications Technology (ICT) which could be evaluated as an implementation of the Goal 16 as well as a proposal of “some ideas and measures to realize a sustainable and efficient justice” for the future Judiciary. The judicial informatization of Korea was introduced into the court system from the late 1970s onwards. The Korean Judiciary also implemented the Electronic Litigation system (E-Litigation) in 2010. The e-litigation systems are evaluated as the most transformative method for cultivating efficient and sustainable justice, both for judges and the public. Despite these favorable ICT circumstances, we were also confronted with many obstacles such as financial burdens, technology and security as well as the digital divide. The Supreme Court of Korea has begun a new project, the next generation of judicial ICT systems, to cope with these obstacles. This article addresses some proposals for measures to realize sustainable and efficient justice for the judicial informatization of the Korean Courts at its preliminary stage. The first step will be the Business Process Reengineering and Information Strategy Planning (BPR & ISP) to reduce the gap between the court system and the people`s expectations. Access to legal information, both online and offline, can become a strong and transformative enabler for the achievement of sustainable and efficient justice. Legal empowerment through free access to law and court cases can help fight discrimination and safeguard the rights of all people. Court information must be much more accessible to public to guarantee the sustainability of the court system and the faith of the judiciary. The artificial intelligence device could be used in the legal realm as an Alpha-Judge to increase efficiency. However, the artificial intelligence cannot serve as a substitute for the human mind or feelings of justice. The ubiquitous access will benefit the welfare of court workers. We also have to bear in mind that the importance of security and data protection. ICT has to bridge these two concepts: security and safety. Lastly, although a treasure trove of information is available to us, access to information is not always guaranteed to everybody. It is the judiciary`s role and responsibility to embrace those who have been alienated from society. ICT will become more prevalent by soliciting fancy and efficient methods. Technology is an effective tool to facilitate our advancement, but its use cannot be the final goal we are striving for. We must focus on the core values and purposes of the judicial service. The justice system is human. I am sure we can continuously seek future advancements, while reminding ourselves that the best way to predict the future is to create it.

4A Comparative Examination of Counter-Terrorism Law and Policy

저자 : ( Laurent Mayali ) , ( John Yoo )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 93-146 (54 pages)

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This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks by ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired by leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist groups before they could attack. The Obama administration`s campaign of drone strikes in the Middle East and Africa against al Qaeda, Taliban, and ISIS leaders represents the culmination of this approach. Nevertheless, it has continued to rely on the criminal justice system when terrorist attacks developed within U.S. territory. It has arrived at a hybrid system which tracks geography - the difference between at home and abroad - rather than enemy capability. The European approach has been different. The earlier confrontation with terrorism in France and the United Kingdom encouraged more robust legal authorities there. European nations, however, have struggled to respond to the international dimension of more recent attacks. They have incrementally expanded their existing powers used to address homegrown threats by Marxist-Leninist groups or secessionist movements, but have failed to successfully adopt a more preventive strategy aimed at the foreign roots of the current terrorist threat.

5Judicial Justice: From Procedural Justice to Communicative Justice

저자 : ( Un Jong Pak )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 147-161 (15 pages)

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Approaching the matter from the position of trying to bridge the gap between the theory of justice and the judicial institution, I explain in this paper the dilemma inherent in the idea of justice and point out that this dilemma is inevitable because we cannot completely rule out the question of “the good” in the question of justice. Based on this, I explain the problem of judicial justice from three points of view: the institutional, the discursive, and the subjective point of view of judges. From the institutional perspective, while looking at the relationship between the legislature, judiciary, and civil society, I propose the principle of the division of justice, touching briefly upon the problem of constitutional challenges and judge-made law. From the discursive perspective, after reflecting that the judicial process is necessarily a part of the social communicative process, I examine judicial justice as part of the problem of communication. Finally and from the subjective perspective, I comment on what justice could mean for an individual judge who has to find the right answers in hard cases and conclude by likening justice to the “vanishing point” of a painting.

6The Decision of the Korean Supreme Court on the Contingent Fee Agreement in Criminal Cases: General Clauses, Judicial Activism, and Prospective Overruling

저자 : ( Jinsu Yune )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 163-191 (29 pages)

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On July 23, 2015, The Korean Supreme Court declared that a contingent fee agreement between a criminal defendant and the defending attorney is invalid, as it is contrary to public policy. This decision also adopted the theory of pure prospective overruling. This decision is a clear manifestation of judicial activism in interpretation. Generally, courts take the following four factors into consideration when making activist decisions: (1) the text of statutes; (2) compatibility with the existing legal system; (3) the comparative advantage between the legislature and the judiciary; and (4) the magnitude of the impact upon legal relations. In this case, the impact of the decision upon contingent fee agreements entered into before the decision was a major concern to the justices of the Supreme Court. At that point, the Supreme Court used the tour de force of prospective overruling to make it clear that, while contingent fee agreements should not be allowed in the future, at the same time, the impact of that decision upon existing agreements of this type should be minimized. However, careful analysis shows that prospective overruling is simply not compatible with the function of courts.

7Investor Protection in Korean Capital Market through Disclosures and Litigation

저자 : ( Kyung-hoon Chun )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 193-231 (39 pages)

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The Korean securities market faces an ever-increasing demand from investors for transparent and legitimate operation. As a result of legislative, administrative, and judicial endeavors to protect investors in the securities market, both disclosure schemes and substantive grounds for claims are in place, producing a significant number of administrative sanctions and court judgments of civil liability for defective disclosures. It is noteworthy that electronic disclosures have significantly contributed to the transparency of the market, which was made possible by Korea`s highly-developed broadband Internet environment. Furthermore, an increasing number of lawsuits against gatekeepers such as accounting firms and underwriters are requiring far more due diligence on their side, which is another positive step in investor protection. Still, insufficient incentive to sue remains one of the biggest hurdles for remedies through litigation. Proposals to revitalize class actions, such as lifting procedural barriers and offering pecuniary incentives to the lead plaintiff and its counsel, should be seriously considered.

8Back to Fundamentals: A Closer Look at a Seoul High Court`s Unsuccessful Attempt to Introduce Attorney-Client Privilege in Korea

저자 : ( Soojin Nam )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 233-263 (31 pages)

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In light of certain recent events, such as a search and seizure conducted at one of the major law firms by the Prosecutor`s Office, vigorous discussion has surfaced in South Korea concerning the absence of and need for the so-called “legal professional privilege” or “attorneyclient privilege.” In fact, back in 2009, “attorney-client privilege” almost found its way into Korean jurisprudence, when the Seoul High Court affirmed a lower court`s finding that US-style attorney-client privilege can be derived from the Korean constitution`s “right to counsel,” existing laws, and the fact that attorney-client privilege exists in many other jurisdictions. This case, however, was later reversed by the Supreme Court. A careful examination of each of these grounds for attorney-client privilege, with the analytical tools provided by the body of case law and scholarship concerning attorney-client privilege in the US, makes clear why these alleged grounds for finding such a privilege in Korea fell short of expectations. Amidst recent discussions, which often revive these same grounds that previously failed, a straightforward approach reviewing the fundamentals of attorney-client privilege appears to be all the more necessary.

9Researching Korean Constitutional Law and The Constitutional Court of Korea

저자 : ( Seokmin Lee ) , ( Fabian Duessel )

발행기관 : 서울대학교 법학연구소 간행물 : Journal of Korean Law 16권 1호 발행 연도 : 2016 페이지 : pp. 265-284 (20 pages)

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This article introduces Korean legal materials to English speakers wishing to undertake the study of Korean constitutional law and cases. The aim is to highlight relevant material provided by the Constitutional Court of Korea (CCK). Looking back over the last three decades, as the CCK has expanded and stabilized its role in the Korean constitutional system, the basic materials available on Korean constitutional law have grown in volume, partly due to the CCK`s efforts. However, there is still room for improvement in the CCK`s quest to become a leading court of constitutional adjudication in the Asian region, comparable to the positions of the German Federal Constitutional Court and the US Supreme Court on the world stage. Research on Korean constitutional law and cases will gain in significance once the permanent Research Secretariat of the Association of Asian Constitutional Courts and Equivalent Bodies is established in Seoul in 2017. Therefore, an expansion in available research materials on Korean constitutional law is to be expected in the near future. An overview of the position of the CCK in South Korea`s constitutional system provides institutional context. This is followed by a discussion of CCK jurisdictions and their links to the case citation system. Research materials beyond case law are also introduced; finally, an assessment is made of the availability and potential growth of constitutional research material.

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