2006 Cultural Heritage Legal Summary

Abstract

During the past year; there has been continued incremental progress in the ratification and implementation of international conventions, particularly the 1970 UNESCO Convention. Countries of origin, particularly Italy and Greece, have become even more active in seeking the restitution of looted antiquities, as with the ongoing trial of former Getty curator Marion True and agreements with several U. S. museums for the return of numerous artifacts. The litigation concerning Iranian artifacts in various U. S. institutions has become even more complex, however, and the outcome is still uncertain. Finally, United States case law, particularly in the western part of the country, is pointing out some of the weaknesses in federal laws designed to protect archaeological sites and artifacts on federal land.     

TEACHING OLD DOGS NEW TRICKS: FOUR MOTIFS OF LEGAL CHANGE FROM EARLY MODERN EUROPE

In the past millennium, there have been thousands of polities in Europe and millions of laws. This article contributes to efforts by historians and sociologists to make some sense of this sprawl by constructing common types of law and legal change. Such types constitute distinctive patterns by which historical actors change names, ideas, and applications of rules of law under various circumstances. Three classic forms of change, namely legislation, mutation of custom, and judge‐made law, were described by Max Weber. To Weber's model I add four new types or motifs of change, which I dub legal deeds, voice‐supersession, legal fictions, and anthropological expansion. The major advance of the four motifs is that they each combine what could be called a semantic and a social view of legal change. That is, they take seriously the fact that law is often bound in a self‐conscious tradition of thought and practice. But each motif of change is also characterized by a typified social configuration of legal operators and legal subjects, who apply competing ideas to one another in distinctive ways. The paradigm of law in which the four motifs are embedded is evolutionary, pluralist, and liberal in that it posits creative social organization by multiple, independent, interacting individuals in society, weaving cumulative, complex orders. This theory makes several significant scholarly interventions. First, it attempts to reconcile outstanding semantic and social theories of legal change. Second, it historicizes legal pluralism while giving evolutionary theory a healthy dose of contingency. Third, the four motifs should also be serviceable to intellectual historians as tools for describing how historical actors interact with traditions generally. Tradition need not be viewed as conservative or even overwhelmingly static. This paradigm may help historians and social scientists assess how the force of the status quo balances against the power of individuals to innovate.     

Defiant Innovation: The Adoption of Medical Marijuana Laws in the American States

Diffusion research often characterizes the role of the federal government in innovation adoption as a supportive one, either increasing the likelihood of adoption or its speed. We examine the adoption of medical marijuana laws (MMLs) from 1996 to 2014 to shed light on what motivates states to adopt innovations that are in explicit defiance of federal law. Furthermore, we examine whether federal signals have any influence on the likelihood of adoption. In doing so, we utilize implementation theory to expand our understanding of how the federal government's position impacts state policy innovation adoption. We find mixed evidence for the influence of federal signals on the adoption of MMLs. The results suggest that medical marijuana policies are much more likely to be adopted in states when proponents have the political or institutional capital, rather than a medical or fiscal need. Moreover, this political capital is sufficient independent of the federal government's real or perceived position.     

政治和法治的钟摆——以国家观念(文化)史为视角

法治是人类经过长期的探索,才得以确立政府应该负责的一种信念。历史上,法治从对宗教自由和公德心的承认发展而来。国家在认可个人的宗教自由和公德心的同时规定了对自身的基本限制。西方现代法治进一步延伸了宪法控制政府行为的观念。法律制定是国家权力的明显体现,而被制定的法律是国家政策转化为行动的中介并对整个政府行为均具有约束力。这意味着政府当局不能采取任何与议会或宪法相抵触的行动,意味着法律优先于任何的、所有的其他政府手段,受到立法机关法律的、政治的首要性的支持。借助国家观念史的演进历史来分析,可以说明政治和法治的钟摆始终是在回答为什么必须使用国家权力,然后才是如何防止权力的滥用(即权力守法)这两个问题所代表的倾向之间摆动。     

Getting the Job Done: Resolving State- Federal Conflicts in Superfund

The American system of federalism creates frequent opportunities for clashes between state and federal environmental regulators. State and federal environmental laws overlap but are not easily reconciled. Most federal environmental law provides no clear answer as to how to reconcile differing mandates of state and federal environmental regulators. In this article, we will examine these state-federal conflicts as they played out in 1994 in, the cleanup of contaminated sites in the state of Washington. This article describes the way a regional office of the Environmental Protection Agency and the state's Department of Ecology developed a novel approach to managing the essential tension between overlapping state and federal cleanup laws.     

International Environmental Regimes: Legalisation,Flexibility and Effectiveness

In one of the first quantitative designs, we explore the impact of both legalisation and flexibility on regime effectiveness, using data on international environmental institutions. One of the main implications is that ‘precision’ is an important determinant of regime performance. If the rule and norm system is well defined, well understood and clear, then a regime tends to be more effective in addressing an environmental problem. We do not find evidence, however, that ‘hard law’ is more effective than ‘soft law’ or that delegation mechanisms may be relevant. Second, flexibility in the regime structure increases regime performance – regular instead of subsidiary bodies enhance flexibility and thus have a positive effect on a regime's environmental problem management. Flexibility in states' agenda setting power, membership and decision making do not seem to have a crucial influence, though.     

‘That's What Being A Woman Is For’: Opposition To Marital Rape Law Reform In Late Twentieth‐Century Australia

From 1976 until 1994, Australian states and territories introduced a raft of reforms to sexual assault laws. Most of these were welcomed, and were seen to reflect women's changing status within a modernising society. One reform, however, was especially contentious. The British law had proclaimed that a woman could not be raped within marriage: the marital bond included a husband's right to sexual access to his wife. Following South Australia's lead, all Australian jurisdictions introduced changes to this law, making it a crime to rape a woman within marriage, either before or after separation. It was a fundamental challenge to the way familial authority was conceptualised, established and policed. In a period where feminism had infiltrated many layers of political and social life, we might expect that this change to the law would have been greeted with relief and even celebration. The response to changes to marital rape laws was, however, both muted and ambivalent. Even feminist groups did not offer unequivocal support, and in general public opinion was at best reserved. Further, many conservative groups understood the new laws as an assault on the sanctity of the family itself. Drawing on a wide range of sources in the mainstream and alternative media, as well as parliamentary debates, government enquiries, academic studies and legal reports, this paper will explore the multifarious responses to legislative change. It uncovers the complex ways sexual violence and female bodily autonomy were understood within and beyond the borders and boundaries of the home and family.     

The origins, development, and passage of Medicare's revolutionary prospective payment system

This article explains the origins, development, and passage of the single most influential postwar innovation in medical financing: Medicare's prospective payment system (PPS). Inexorably rising medical inflation and deep economic deterioration forced policymakers in the late 1970s to pursue radical reform of Medicare to keep the program from insolvency. Congress and the Reagan administration eventually turned to the one alternative reimbursement system that analysts and academics had studied more than any other and had even tested with apparent success in New Jersey: prospective payment with diagnosis-related groups (DRGs). Rather than simply reimbursing hospitals whatever costs they charged to treat Medicare patients, the new model paid hospitals a predetermined, set rate based on the patient's diagnosis. The most significant change in health policy since Medicare and Medicaid's passage in 1965 went virtually unnoticed by the general public. Nevertheless, the change was nothing short of revolutionary. For the first time, the federal government gained the upper hand in its financial relationship with the hospital industry. Medicare's new prospective payment system with DRGs triggered a shift in the balance of political and economic power between the providers of medical care (hospitals and physicians) and those who paid for it--power that providers had successfully accumulated for more than half a century.     

The State of Research on Gender and Political Participation

Woodrow Wilson declared the early Gilded Age to be a time of Congressional Government, when the legislature “reigned supreme” and was the federal polity's “motivating force.” Yet that same Congress, and era, have been immortalized pejoratively as bastions of corruption; of politicos, spoils–and, most especially, of omnipotently evil lobbyists. This essay argues that both lobbying and the notoriety it aroused in the Grant years were essentially by-products of systemic change. Corruption did exist, but much of what contemporaries saw as illicit was merely new; neither Washington nor the polity as a whole had yet devised mechanisms, or even language, appropriate to emerging conditions. In fact, lobbying was a necessary and even beneficial force in post-Civil War America, one that actually helped officials and citizens to function as the scope, procedures, and agenda of governance underwent dramatic transformation.     

The nullification crisis,southern discontents,and the American political process

The Nullification crisis has frequently been misunderstood because too much emphasis has been placed on South Carolina and the dramatic events of 1832–33. The broader perspective presented here reveals that not just South Carolina but the whole South (except the border states) turned against federal authority in the 1820s, driven by economic discontents and anxieties about maintaining control of the South's racial minorities. In 1828, however, this rebellious outlook found political satisfaction when Andrew Jackson and his supporters took control in Washington and proceeded to redress most of the South's grievances, including, in 1832, the difficult issue of the protective tariff. As a result, the rest of the South stood aside when South Carolina obstructed federal revenue laws, and South Carolina escaped from the crisis only by accepting a settlement that gave it a nominal victory while, in reality, restoring to Northern protectionists some of the advantages they had lost in the settlement of 1832. The interests of the South were best protected not by obstructing federal law, but by participating in the nation's democratic process.     

对地方志工作法制化的一点思考

地方志工作法制化是地方志事业可持续发展最重要的保障。地方志工作法制化主要体现为三方面：具有较完善的地方志法律与地方志工作法规、规章;地方志法律与地方志工作法规、规章切实得到执行;违反地方志法律与地方志工作法规、规章的行为被依法纠正与处罚。地方志工作法制化目前存在与需要解决的主要问题是：地方志法律与地方志工作法规、规章尚不健全;现有地方志工作法规、规章尚未得到很好执行。进一步推进地方志工作法制化,首先要完善地方志立法,积极推动《地方志法》的制定和地方志工作地方立法;同时要将地方志工作法制化纳入依法行政范畴。     

袁世凯与清末法制改革

在清末法制改革中,袁世凯是积极的推动者和参与者。他上书请求变革法律,积极推荐修法人才,并参与新法内容的讨论;他极力主张多渠道地造就和选用法律人才;他利用直隶总督的地位和权力,将法制改革的许多措施在直隶施行,对推动当时中国封建法制的近代化进程起到了积极的促进作用。     

Forging a Frontier: Social Capital and Canada's Mounted Police, 1867–1914

This article examines the role of the North West Mounted Police in creating communities in the Canadian Prairies during the first decades of Confederation. Despite being created as an institution of law enforcement, the Mounted Police acted more often as a social bonding agent, creating the necessary conditions and organizations required to establish permanent communities otherwise isolated from one another. As the only federal presence in the frontier, the force evolved into an autonomous institution of cultural stability, performing vital services and advocating for frontier objectives to the government in Ottawa.     

U.S. Environmental Policy Implementation on Tribal Lands: Trust,Neglect, and Justice

This study investigates the implementation of U.S. environmental protection laws under American Indian tribal governance. The landmark laws of the 1970s that form the core of America's environmental policy regime made no mention of American Indian tribal lands, and the subsequent research literature on environmental policy has given them little attention. The U.S. Environmental Protection Agency has primary implementation responsibility for environmental protection laws on tribal lands, which offers a unique opportunity to study direct federal implementation apart from typical joint state–federal implementation. Further, because Indian reservations are homes to a disproportionately poor, historically subjugated racial group, analysis of environmental programs on tribal lands offers a unique perspective on environmental justice. We analyze enforcement of and compliance with the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) to compare the implementation of environmental policy on tribal lands with nontribal facilities. Analysis reveals that, compared with nontribal facilities, tribal facilities experience less rigorous CWA and SDWA enforcement and are more likely to violate these laws.     

From imperial inclusion to national exclusion: citizenship in the Habsburg monarchy and in Austria 1867–1923

This paper examines the development of citizenship in Austria-Hungary between 1867 and the 1920s. At the beginning, the paper analyses the reform of citizenship laws in both Austria and Hungary after the Settlement of 1867. Whilst the Austrian citizenship law maintained legal traditions stretching back into the first half of the nineteenth century, the new Hungarian citizenship law of 1878 emulated the laws in effect in Wilhelmine Germany. The basis of Hungarian citizenship law was, however, much broader than German law, in order to allow for the effective integration of the non-Magyar population. An evaluation of applications for Austrian naturalisation illustrates the remarkable capacity of Austrian citizenship law to integrate and to uphold a concept of nationality independent from ethnicity, religious denomination, class or gender. Only during, and above all after, the First World War did the inclusive practice of the Cisleithanian bureaucracy give way to the more exclusive policy of the new German-Austrian Republic, as civil servants now introduced the vague notion of ‘race’ as a criterion for naturalisation. In contrast to Tsarist Russia and the Second German Empire, both of which introduced similar agendas for nationalisation in the latter part of the nineteenth century linking citizenship to ethnic and religious identity, the Habsburg Monarchy remained basically untouched by such tendencies and with the constitutionally guaranteed principle of ‘national equality’ upheld its early modern tradition of ethnic and religious tolerance well into the later Imperial period.     

The fusion of law and ethics in cultural heritage management: The 21st century confronts archaeology

Abstract

Archaeologists around the world face complex ethical dilemmas that defy easy solutions. Ethics and law entwine, yet jurisprudence endures as the global praxis for guidance and result. Global legal norms articulate ‘legal rights’ and obligations while codes of professional conduct articulate ‘ethical rights’ and obligations. This article underscores how a rights discourse has shaped the 20th century discipline and practice of archaeology across the globe, including in the design and execution of projects like those discussed in the Journal of Field Archaeology. It illustrates how both law and ethics have been, and still are, viewed as two distinct solution-driven approaches that, even when out of sync, are the predominant frameworks that affect archaeologists in the field and more generally. While both law and ethics are influenced by social mores, public policy, and political objectives, each too often in cultural heritage debates has been considered a separate remedy. For archaeology, there remains the tendency to turn to law for a definite response when ethical solutions prove elusive.

As contemporary society becomes increasingly interconnected and the geo-political reality of the 21st century poses new threats to protecting archaeological sites and the integrity of the archaeological record during armed conflict and insurgency, law has fallen short or has lacked necessary enforcement mechanisms to address on-the-ground realities. A changing global order shaped by human rights, Indigenous heritage, legal pluralism, neo-colonialism, development, diplomacy, and emerging non-State actors directs the 21st century policies that shape laws and ethics. Archaeologists in the field today work within a nexus of domestic and international laws and regulations and must navigate increasingly complex ethical situations. Thus, a critical challenge is to realign approaches to current dilemmas facing archaeology in a way that unifies the ‘legal’ and the ‘ethical’ with a focus on human rights and principles of equity and justice. With examples from around the world, this article considers how law and ethics affect professional practice and demonstrates how engagement with law and awareness of ethics are pivotal to archaeologists in the field.     

Review of Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie , the Judicial Power, and the Politics of Federal Courts in Twentieth-Century America

One of my strongest memories of law school remains the first class in “Federal Courts.” The teacher began by asking if anyone could explain the holding in Erie Railroad Co. v. Tompkins (1938).2 Several students raised their hands, and the answer was soon forthcoming. Federal courts were bound by the decisional rules of the state courts in the states in which theywere located; there is no federal common law. “Very good,” the teacher said. “If you know that, why are you taking this course?”     

Legal Geographies of Intellectual Property, ‘Traditional’ Knowledge and Biodiversity: Experiencing Conventions,Laws, Customary Law,and Karma in Thailand

This article explores the existence of customary laws relating to ‘traditional’ knowledge of plants in Thailand through micro‐ethnographic case studies. This is juxtaposed against global and national frameworks of intellectual property laws that have a privatising effect on knowledge under the rubric of discovery or ‘invention’, as well as liability rights approaches of compensation and benefit‐sharing for research access. By understanding scale and legal jurisdiction as socially and politically constructed phenomena, we explore how laws at different scales and in different jurisdictions may override each other, discriminate against foreign laws and practices, and ignore customary laws. In doing so, the paper presents complex legal geographies of plants and associated knowledge, which suggest that the customary laws and norms of Indigenous groups and traditional healers are often ignored by ‘outsiders’. The paper notes that the possibility of ‘injury’ to traditional healers remains considerable without appropriate consent and given the discriminations surrounding knowledge made by patent laws. However, the ethnographies also point to the possibility of local remedies to these injuries through ritual processes, and we note resistant co‐constitutions of law and scale through the Nagoya Protocol.     

A community out of balance: nationality law and migration politics in the history of post-unification Italy

Italian government policies concerning foreign immigration have to be understood in the context of laws on nationality. Since the time of unification, Italian laws on nationality have been closely determined by policies on emigration and immigration. As a result, the laws regarding the nationality status of Italian emigrants returning from abroad, and for foreign immigrants in Italy, have on the whole been determined by the procedures adopted for the acquisition or deprivation of Italian nationality. This is a subject that has not been studied and this article reconstructs the principal stages in the development of Italian nationality laws from the early twentieth century to the present. This reveals that Italian nationality law treats Italian emigrants and foreign immigrants in very different ways. Both the legal system and government policy has in the past been extremely generous towards the former and has made both the preservation and the reacquisition of nationality relatively easy for Italian nationals, even before there were practical motives for this (e.g. the right for Italians living overseas to vote). When it comes to foreign immigrants, however, Italian law is amongst the most restrictive in western Europe. The article concludes by arguing that this underlying imbalance is a major but largely ignored weakness in Italian democracy.     

With a Little Help from Our Feds: Understanding State Immigration Enforcement Policy Adoption in American Federalism

Since 2001, state governments have adopted 287(g) cooperative immigration enforcement agreements with the federal government that authorize their law enforcement personnel to assist in detaining violators of civil federal immigration law. Employing a theoretical framework drawn from theories of policy adoption, intergovernmental relations, and immigration research, we test which state‐level political, sociodemographic, geographic, and economic determinants influence states to enter into such a cooperative agreement. In addition to finding that the partisanship of a state's governor, a state's effort on public welfare, and an increase in a state's percentage of Hispanics are related to the adoption of a cooperative immigration enforcement policy, we found evidence of “steam valve federalism” working not at the state level as Spiro (1997) first theorized but at the local level. When a state's localities adopt immigration enforcement agreements with the federal government, the state itself is far less likely to adopt their own. Understanding the reasons states would adopt this type of policy sheds light on current trends in state immigration policy and their effect on future state/federal intergovernmental relations.