《民意，誰說了算？人民知情的抉擇》註腳-第十六章

第十六章：航向西南西

          科學、邏輯與專業治理的國家

註腳

【1】 李明軒，改內閣制  聽聽就好？，天下雜誌，2014年12月25日，http://www.cw.com.tw/article/article.action?id=5063303（最後瀏覽日：2016年5月12日）。

【2】 Jeffrey L. Mashaw, Small Things like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 Fordham L. Rev. 17, 20-21 (2001) (“I am not claiming, of course, that reason plays no role in legitimating both legislative and judicial action. My claim is only that the legitimacy of legislative or judge-made law draws on sources other than rationality or reason-giving. We speak unselfconsciously not of legislative reason but of the legislative will. Law in its legislative form is the aggregation of preferences legitimated by periodic elections.”).

【3】 Id. (“[T]he legislature need not have investigated the facts of the matter, analyzed them cogently, or been motivated by whatever reason can be constructed as a justification for its action.”).

【4】 New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (U.S. 2008) J. Stevens dissenting (“Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.’”).

【5】 U.S. v. Sahhar, 917 F.2d 1197 (9th Cir. 1990) fn 5 (“The rational basis test is, more or less, a judicial rubber stamp. Courts have almost always upheld classifications evaluated under this standard.”).

【6】 Mashaw, supra note 2 (“By contrast, a retreat to political will or intuition is almost always unavailable to modern American administrative decisionmakers...Administrators, of course, have two possible connections to the electorate: the appointment of all high level administrative personnel by the President and the ultimate derivation of virtually all administrative authority from the legislature. But, it is a rare case in which an administrator called upon to justify a decision can respond simply, "The President made me do it," or "The Congress said so. "And, in ‘quasi-legislative,’ rulemaking proceedings, administrative law doctrine counsels administrators against any ex parte communications with elected officials that are not memorialized and described in the rulemaking record.'”); 5 U.S.C. 557(d) ("(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C)a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.")；行政程序法第43條行政機關為處分或其他行政行為，應斟酌全部陳述與調查事實及證據之結果，依論理及經驗法則判斷事實之真偽，並將其決定及理由告知當事人。第47條：公務員在行政程序中，除基於職務上之必要外，不得與當事人或代表其利益之人為行政程序外之接觸。公務員與當事人或代表其利益之人為行政程序外之接觸時，應將所有往來之書面文件附卷，並對其他當事人公開。前項接觸非以書面為之者，應作成書面紀錄，載明接觸對象、時間、地點及內容。

【7】 Mashaw, supra note 2, citing Nat'l Tire Dealers & Retreaders Ass'n v. Brinegar, 491 F.2d 31, 37 (D.C. Cir. 1974).

【8】 Id. (“Law talk as it is carried on in the profession as well as in the academy is almost maniacally fixated on the reasons given by appellate judges as justifications for their decisions...For anyone committed to adjudication as the preeminent rational discourse for the development of law the ubiquitousness of settlement is deeply disturbing...Moreover, many civil cases, and most criminal ones, that go to trial are decided by jury verdicts. We have self-consciously made the jury a black box. Its results are known, but its reasons are both mysterious and irrelevant to the path of the law.”).

【8】 Id.

【9】 Motor Vehicle Manufacturers Association of the U.S. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 34 (1983) (“The Act authorizes judicial review, under the Administrative Procedure Act, of ‘all orders establishing, amending, or revoking’ a motor vehicle safety standard. under this authority, we review today whether NHTSA acted arbitrarily and capriciously in revoking the requirement in Motor Vehicle Safety Standard 208 that new motor vehicles produced after September, 1982, be equipped with passive restraints to protect the safety of the occupants of the vehicle in the event of a collision.”).

【10】Id. at 38-39 (“In 1977, the agency had assumed that airbags would be installed in 60% of all new cars and automatic seatbelts in 40%. By 1981, it became apparent that automobile manufacturers planned to install the automatic seatbelts in approximately 99% of the new cars. For this reason, the lifesaving potential of airbags would not be realized. Moreover, it now appeared that the overwhelming majority of passive belts planned to be installed by manufacturers could be detached easily and left that way permanently. Passive belts, once detached, then required ‘the same type of affirmative action that is the stumbling block to obtaining high usage levels of manual belts.’ For this reason, the agency concluded that there was no longer a basis for reliably predicting that the Standard would lead to any significant increased usage of restraints at all.”).

【11】Id. at 46 (“The first and most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized. Standard 208 sought to achieve automatic crash protection by requiring automobile manufacturers to install either of two passive restraint devices: airbags or automatic seatbelts. There was no suggestion in the long rulemaking process that led to Standard 208 that, if only one of these options were feasible, no passive restraint standard should be promulgated. Indeed, the agency's original proposed Standard contemplated the installation of inflatable restraints in all cars.”).

【12】Id. at 47-48 (“The agency has now determined that the detachable automatic belts will not attain anticipated safety benefits, because so many individuals will detach the mechanism. Even if this conclusion were acceptable in its entirety, standing alone, it would not justify any more than an amendment of Standard 208 to disallow compliance by means of the one technology which will not provide effective passenger protection. It does not cast doubt on the need for a passive restraint standard or upon the efficacy of airbag technology...... At the very least, this alternative way of achieving the objectives of the Act should have been addressed and adequate reasons given for its abandonment. But the agency not only did not require compliance through airbags, it also did not even consider the possibility in its 1981 rulemaking. Not one sentence of its rulemaking statement discusses the airbags-only option.”).

【13】Id. at 48 citing New York v. U.S. 342 U.S. 882, 884 (1951) (“Expert discretion is the lifeblood of the administrative process, but ‘unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.’”) (dissenting opinion); id (“[A]n agency must cogently explain why it has exercised its discretion in a given manner.”).

【14】Id. at 49 (“[I]t may not revoke a safety standard which can be satisfied by current technology simply because the industry has opted for an ineffective seatbelt design.”).

【15】Id. at 50-51 (“We do not require today any specific procedures which NHTSA must follow. Nor do we broadly require an agency to consider all policy alternatives in reaching decision. It is true that rulemaking ‘cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man . . . regardless of how uncommon or unknown that alternative may have been. . . .’. But the airbag is more than a policy alternative to the passive restraint Standard; it is a technological alternative within the ambit of the existing Standard. We hold only that, given the judgment made in 1977 that airbags are an effective and cost-beneficial lifesaving technology, the mandatory passive restraint rule may not be abandoned without any consideration whatsoever of an airbags-only requirement.”).

【16】Id. at 51-52 (“ We agree with petitioners that, just as an agency reasonably may decline to issue a safety standard if it is uncertain about its efficacy, an agency may also revoke a standard on the basis of serious uncertainties if supported by the record and reasonably explained. Rescission of the passive restraint requirement would not be arbitrary and capricious simply because there was no evidence in direct support of the agency's conclusion. It is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion. Recognizing that policymaking in a complex society must account for uncertainty, however, does not imply that it is sufficient for an agency to merely recite the terms ‘substantial uncertainty’ as a justification for its actions. As previously noted, the agency must explain the evidence which is available, and must offer a ‘rational connection between the facts found and the choice made.’ Generally, one aspect of that explanation would be a justification for rescinding the regulation before engaging in a search for further evidence. In these cases, the agency's explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking.”).

【17】Id. at 51-53 (“The Court of Appeals rejected this finding because there is ‘not one iota’ of evidence that Modified Standard 208 will fail to increase nationwide seatbelt use by at least 13 percentage points, the level of increased usage necessary for the Standard to justify its cost.....To be sure, NHTSA opines that ‘it cannot reliably predict even a 5 percentage point increase as the minimum level of expected increased usage.’”).

【18】Id. at 53 (“The empirical evidence on the record, consisting of surveys of drivers of automobiles equipped with passive belts, reveals more than a doubling of the usage rate experienced with manual belts. Much of the agency's rulemaking statement -- and much of the controversy in these cases -- centers on the conclusions that should be drawn from these studies. The agency maintained that the doubling of seatbelt usage in these studies could not be extrapolated to an across-the-board mandatory standard because the passive seatbelts were guarded by ignition interlocks and purchasers of the tested cars are somewhat atypical. Respondents insist these studies demonstrate that Modified Standard 208 will substantially increase seatbelt usage.”).

【19】Id. at 53-54 (“We believe that it is within the agency's discretion to pass upon the generalizability of these field studies. This is precisely the type of issue which rests within the expertise of NHTSA, and upon which a reviewing court must be most hesitant to intrude...... But this and other statements that passive belts will not yield substantial increases in seatbelt usage apparently take no account of the critical difference between detachable automatic belts and current manual belts. A detached passive belt does require an affirmative act to reconnect it, but -- unlike a manual seatbelt -- the passive belt, once reattached, will continue to function automatically unless again disconnected. Thus, inertia -- a factor which the agency's own studies have found significant in explaining the current low usage rates for seatbelts -- works in favor of, not against, use of the protective device.”).

【20】Id. at 54-55 (“The agency is correct to look at the costs as well as the benefits of Standard 208. The agency's conclusion that the incremental costs of the requirements were no longer reasonable was predicated on its prediction that the safety benefits of the regulation might be minimal. Specifically, the agency's fears that the public may resent paying more for the automatic belt systems is expressly dependent on the assumption that detachable automatic belts will not produce more than ‘negligible safety benefits.’ When the agency reexamines its findings as to the likely increase in seatbelt usage, it must also reconsider its judgment of the reasonableness of the monetary and other costs associated with the Standard. In reaching its judgment, NHTSA should bear in mind that Congress intended safety to be the preeminent factor under the Act: ‘The Committee intends that safety shall be the overriding consideration in the issuance of standards under this bill. The Committee recognizes . . . that the Secretary will necessarily consider reasonableness of cost, feasibility and adequate leadtime.’ ‘In establishing standards, the Secretary must conform to the requirement that the standard be practicable. This would require consideration of all relevant factors, including technological ability to achieve the goal of a particular standard as well as consideration of economic factors.’ ‘Motor vehicle safety is the paramount purpose of this bill, and each standard must be related thereto.’”).

【21】Id. at 55-56 (“It is argued that the concern of the agency with the easy detachability of the currently favored design would be readily solved by a continuous passive belt, which allows the occupant to ‘spool out’ the belt and create the necessary slack for easy extrication from the vehicle.......By failing to analyze the continuous seatbelts option in its own right, the agency has failed to offer the rational connection between facts and judgment required to pass muster under the arbitrary and capricious standard.”).

【22】Id. at 57 (“‘An agency's view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis. . . .’”).

【23】Mashaw, supra note 2, (“But, it is a rare case in which an administrator called upon to justify a decision can respond simply, ‘The President made me do it,’ or ‘The Congress said so.’”).

【24】孫承武，大學生反美牛 AIT前爆衝突，中央通訊社，2012年3月16日，http://www.cna.com.tw/news/firstnews/201203160023-1.aspx（最後瀏覽日：2016年5月12日)。

【25】Amy Radunz, Use of Beta Agonists as a Growth Promoting Feed Additive for Finishing Beef Cattle, University of Wisconsin Cooperative Extension, http://fyi.uwex.edu/wbic/files/2010/11/Beta-Agonists-Factsheet.pdf (last visited May 11, 2016); Jason Cleere, The Facts about OptaflexxTM: Ractopamine for Cattle, AgriLIFE Texas A&M System, http://animalscience.tamu.edu/wp-content/uploads/sites/14/2012/04/beef-optaflexx.pdf (last visited May 11, 2016);  National Cattlemen’s Beef Association, Modern Beef Production, http://www.explorebeef.org/cmdocs/explorebeef/factsheet_modernbeefproduction.pdf (last visited May 11, 2016).

【26】Id.

【27】周晉澄，台灣人需要美國瘦肉精萊克多巴胺的調養嗎？，新世紀智庫論壇第57期，2012年3月30日，http://www.taiwanncf.org.tw/ttforum/57/57-06.pdf （最後瀏覽日：2016年5月12日)。

【28】National Cattlemen’s Beef Association, supra note 25.

【29】Helena Bottemiller, FDA Petitioned to Lower Ractopamine Limits for Meat, Review Health Impacts, Food Safety News, December 21, 2012, http://www.foodsafetynews.com/2012/12/fda-petitioned-to-lower-ractopamine-limits-for-meat-review-animal-health-impact/#.VzSQhPl97IU (last visited May 12, 2016).

【30】P. J. Huffstutter, Environmental, Public Health Groups Sue EPA Over Feed Additive, Reuters, November 6, 2014, http://www.reuters.com/article/us-usa-fda-ractopamine-lawsuit-idUSKBN0IQ2E520141106 (last visited May 12, 2016).

【31】Center for Food Safety v. Hamburg, Consolidated Case No. 14-cv-04932-YGR, (N. Cal. 2015).

【32】憲法第18條：「人民有應考試服公職的權利。第86條：左列資格，應經考試院依法考選銓定之：一、公務人員任用資格。二、專門職業及技術人員執業資格。」。

【33】憲法第61條：「行政院之組織，由法律定之。」。

【34】憲法增修條件第3條：「行政院院長由總統任命之。」。

【35】司法院大法官會議第613號解釋，2006年7月21日。

【36】葉素萍，蔡英文指示黨團  緊盯看守內閣爭議政策，中央通訊社，2016年2月3日，http://www.cna.com.tw/news/aipl/201602030260-1.aspx（最後瀏覽日：2016年6月9日)。

【37】Mashaw, supra note 2, (“But, it is a rare case in which an administrator called upon to justify a decision can respond simply, ‘The President made me do it,’ or ‘The Congress said so.’”).

【38】Mark Strand & Tim Lang, Executive Oversight: Congress’ Oft-neglected Job, Congressional Institute, November 28, 2011, http://conginst.org/2011/11/28/executive-oversight-congress-oft-neglected-job/ (last visited May 12, 2016) (“Congressional oversight is an effort of the legislative branch to examine the activities of the executive branch...this process is one of the most important legislative checks on Presidential power ... First and foremost, legislators will exercise oversight to verify whether the President has ‘[taken] Care that the Laws be faithfully executed,’ a task given to him in the Constitution....A similar reason for investigating the executive branch is to gauge how efficiently and effectively the administration is governing....When the legislature engages in oversight, it says, ‘We, the Congress, want to know what you, the President, are doing with the money we appropriated to you.’ But oversight uncovers more than simply administrative inefficiency. Congress can unearth corruption and criminality when it investigates the executive branch....Congress has even established two committees to spearhead oversight initiatives....Most major committees even have oversight subcommittees and hire investigative specialists for the task”).

【39】TVBS少康會客室，陳文茜看總統大選 台灣、美國差很大？少康會客室 20151021（完整版），2015年10月21日，https://www.youtube.com/watch?v=nStNqWshsz8（最後瀏覽日：2016年5月10日)。

【40】莊琇閔，柯文哲：大巨蛋若難解  訴諸i-Voting, 聯合新聞網，2016年3月20日，http://udn.com/news/story/6656/1575136-%E6%9F%AF%E6%96%87%E5%93%B2%EF%BC%9A%E5%A4%A7%E5%B7%A8%E8%9B%8B%E8%8B%A5%E9%9B%A3%E8%A7%A3-%E8%A8%B4%E8%AB%B8i-Voting（最後瀏覽日：2016年5月12日）。

【41】National Society of Professional Engineers, Report on a Case by the Board of Ethical Review, Case no. 88-6, 1988, http://www.nspe.org/sites/default/files/resources/pdfs/Ethics/EthicsResources/EthicsCaseSearch/1988/BER%2088-6.pdf (last visited May 12, 2016).

【42】Id.

【43】Thomas Tredgold (“[T]he art of directing the great sources of power in Nature for the use and convenience of man.”).

【44】Edwin T. Layton, Jr., Critical Perspectives on Nonacademic Science and Engineering: A Historical Definition of Engineering, Edited by Paul T. Durbin, Lehigh University Press, 1991, pp. 60-61 (“Beginning in the late nineteenth century, American engineers were increasingly beset with a feeling of guilt and anxiety about the negative social effects of technology-for whose accomplishments, up to that time, they had been taken full credit. Their response was to attempt to define engineering as acting for the good of society....the new consensus was that the goal of engineering is the good of mankind, not merely use and convenience.”).

【45】National Society of Professional Engineers, Code of Ethics for Engineers, July, 2007, https://www.nspe.org/sites/default/files/resources/pdfs/Ethics/CodeofEthics/Code-2007-July.pdf (last visited May 12, 2016) (“Engineers, in the fulfillment of their professional duties, shall: 1. Hold paramount the safety, health, and welfare of the public. 2. Perform services only in areas of their competence. 3. Issue public statements only in an objective and truthful manner. 4. Act for each employer or client as faithful agents or trustees. 5. Avoid deceptive acts. 6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession”).

【46】Chartered Society of Physiotherapy, UK, QA Standards: Section 1: Autonomy and accountability, http://www.csp.org.uk/professional-union/professionalism/csp-expectations-members/quality-assurance-standards/section-1-au (last visited June 09, 2016) (“Professional autonomy means that a member makes decisions and acts independently within a professional context and is responsible and accountable for these decisions and actions. A key element of professional autonomy is to understanding and working within the limits of personal competence and scope of practice.”).

【47】WMA, WMA Declaration of Madrid on Professionally-led Regulation System Adopted by the 60^th WMA General Assembly, New Delhi, India, October 2009 http://www.wma.net/en/30publications/10policies/r4/index.html (last visited June 09, 2016) (“As a corollary to the right of professional autonomy and clinical independence, the medical profession has a continuing responsibility to be self-regulating....Physicians in each country are urged to establish, maintain and actively participate in a legitimate system of professionally-led regulation.”).

【48】何炯榮、簡慧珍、林敬家，太好賺！建築師借牌文化「很恐怖」，聯合報，2016年2月16日，http://udn.com/news/story/9451/1503658-%E5%A4%AA%E5%A5%BD%E8%B3%BA%EF%BC%81%E5%BB%BA%E7%AF%89%E5%B8%AB%E5%80%9F%E7%89%8C%E6%96%87%E5%8C%96%E3%80%8C%E5%BE%88%E6%81%90%E6%80%96%E3%80%8D（最後瀏覽日：2016年5月12日）。

【49】Joel Mokyr, Mercantilism, the Enlightenment, and the Industrial Revolution, Presented to the Conference in Honor of Eli F. Heckscher, 2003, p. 7 (“It turned out to be easier to transfer Western technology than Western institutions to other areas, and the somewhat tenuous co-evolution of the two was often absent altogether in non-Western economies, leading to a great deal of political tensions and social upheaval.”).

【50】社群中心/綜合報導，蕭姓公務員訓台灣勞工：你們遊手好閒，我們努力打拼！，東森新聞雲，2012年10月23日，http://www.ettoday.net/news/20121023/117709.htm（最後瀏覽日：2016年4月13日）。