The core of pure economic loss

Should loss of earnings be compensated? The established law and economics wisdom considers pure economic loss as a transfer of wealth from the victim to a third party, whose earnings increase as a consequence of the accident. Such transfers do not amount to a social loss and, hence, should not be compensated. We revisit these arguments and show that the social loss should be calculated by taking into account that: (a) pure economic loss often involves impairment costs resulting from the fact that valuable resources cannot be temporarily used and (b) the third-party earnings come at the cost of increased capacity. This increased capacity mitigates the expected harm and, hence, is a form of precaution. By taking into account these factors, we show that most pure-economic-loss cases do result in a socially relevant loss. In addition, we argue that the absence of a social loss is a necessary, but not sufficient, condition for the denial of compensation. The victim (or a third party) may have actually paid for protection against purely private losses. Thus, compensation should be awarded irrespective of whether national law treats the case under tort or contract (where compensation is undisputed). Finally, we offer considerations on the optimal design of liability rules.     

公益保护、行政处罚与行政公益诉讼——杭州市药监局江干分局“撮合私了”案引发的思考

药监局"撮合私了"行为的实质是放弃处罚权的不作为违法。销售假药之违法行为严重损害了社会公众的用药安全,同时破坏了市场主体的公平竞争秩序。违法行为所侵害的公共利益具有潜在危险性和主体不特定性特点,只有通过行政处罚才能修复违法行为所侵害的公共利益,所以,应当原则上禁止"撮合私了"。《治安管理处罚法》第9条的规定只是这个原则的例外,是在违法行为社会危害不大的前提下,综合考虑受害人补偿、调查成本等因素的制度选择。基于行政执法程序天然的利益对抗不足之缺陷,为了纠正随意"撮合私了"之违法行为,保护社会公众的用药安全与公平竞争权,将来修改《行政诉讼法》时应当确立行政公益诉讼制度。     

Trading when you cannot trade: Blackout periods in Italian firms

This paper is part of the general debate concerning corporate governance. It focuses on a mechanism of self-regulation geared at avoiding market abuses: the use of blackout periods during which insiders are temporarily prohibited from trading on the market. Data concerning corporate characteristics, blackout periods, and internal dealing, seem to indicate that companies with a large number of independent directors and a consistent ability to monitor are more likely to adopt blackout periods. However, the research shows that during 2003 insiders did not comply with Italy's Code of Best Practice; they did not totally refrain from trading during the assigned blackout periods. All three variables measuring frequency trading – the numbers of transactions carried out, of active insiders, and of shares traded – were statistically significant during the specified blackout periods. Therefore, this paper could have practical implications for policy makers. If they decide to adopt self-regulation to fight market abuses, they must be aware that a law is only as effective as its enforcement.     

Coasean markets

Coase’s work emphasized the economic importance of very small markets and made a new, more marginalist form of economic “institutionalism” acceptable within mainstream economics. A Coasean market is an association of persons with competing claims on a legal entitlement that can be traded. The boundaries of both Coasean markets and Coasean firms are determined by measuring not only the costs of bargaining but also the absolute costs of moving resources from one place to another. The boundaries of a Coasean market, just as those of the Coasean business firm, are defined by the line where the marginal cost of reaching a value-maximizing bargain by trading inside just equals the marginal cost of going outside. This focus on very small markets is a defining characteristic of modern Transaction Cost Economics. In analyzing such markets Coase ignored the eclectic, historical and behaviorist approach of the old institutionalists and applied the greater formalism and of marginal analysis. In the process, however, Coase assumed away important issues that the first generation of institutionalists were trying to address and created some new ones, such as how equilibrium is attained in Coasean as opposed to neoclassical markets. The most important difference between the two is that a Coasean market requires the unanimous consent of all participants before a trade can be made—a condition imposed by Coase’s own requirement of reciprocity, developed in The Problem of Social Cost (J Law Econ 3:1, 1960). The equilibrium problem is substantial but its significance has not been sufficiently developed. As a result, Coasean analysis of the business firm has made much more progress than has Cosean analysis of markets for legal entitlements. Further, the superiority of private governance over legislation, an important attribute of Coase’s argument, loses much of its force as the number of participants in Coasean markets increases beyond two. Research on the management of commons resources has contributed greatly to our understanding of when private resource allocation decisions by larger groups of owners succeed and when they fail. While not all common resources markets are of the kind contemplated by Coase they share many relevant characteristics. Further, the economic literature on private governance arrangements for the commons has found it necessary to step beyond the strict marginalist methodologies of Coasean economics and look more broadly to the historical, biological and social motivations for human cooperation.     

Alcohol‐Induced Blackout as a Criminal Defense or Mitigating Factor: An Evidence‐Based Review and Admissibility as Scientific Evidence

Alcohol‐related amnesia—alcohol blackout—is a common claim of criminal defendants. The generally held belief is that during an alcohol blackout, other cognitive functioning is severely impaired or absent. The presentation of alcohol blackout as scientific evidence in court requires that the science meets legal reliability standards (Frye, FRE702/Daubert). To determine whether “alcohol blackout” meets these standards, an evidence‐based analysis of published scientific studies was conducted. A total of 26 empirical studies were identified including nine in which an alcohol blackout was induced and directly observed. No objective or scientific method to verify the presence of an alcoholic blackout while it is occurring or to confirm its presence retrospectively was identified. Only short‐term memory is impaired and other cognitive functions—planning, attention, and social skills—are not impaired. Alcoholic blackouts would not appear to meet standards for scientific evidence and should not be admissible.     

Secondary victimization and the collective identity of crime victims: a qualitative analysis of Swedish crime news discourse

This article presents an analysis of how secondary victims of murder—in this context, the parents or close family members of a primary murder victim—are represented in Swedish crime news discourse. The study is based on a discourse analysis of media coverage of secondary victims, and statements made by them, in relation to four highly publicized murder cases during the last two decades. The analysis shows that portrayals of secondary victimization reinforce the conflictual character of victim–offender relationships in the news, but also limit the conditions for talking about the significance of social support, mediation and reconciliation for crime victims. News representations of crime victims become less clearly marked by the characteristics of the ‘ideal’ victim as secondary victims, and persons who are explicitly critical toward the legal system, claim victimhood. Furthermore, the identity of the crime victims’ movement as a collective becomes destabilized when the category of the victim is widened to include individuals whose interests are framed as subjective, rather than related to the needs of other crime victims or the general public. In sum, increased media focus on secondary victims may thus undermine the legitimacy of victim claims in public discourse.     

法经济学在立法中的应用审视——主流的经济分析法学之批判

新古典经济学侧重的是私人领域,探究的是既定社会制度下的个体行为,它通过供求关系的分析来剖析现状产生的原因,不但具有强烈的建构性,而且也表现出为现状辩护的特点;相反,法律制度则属于公共领域的课题,它所规定的是人们的应得权利,要体现社会正义和人本关怀,从而本质上应该是演化的和关怀弱者利益的。正因如此,法律制度不应只是体现力量的较量和博弈,对它的分析也不能仅仅用基于供求的收益—成本范式,而是要遵循从本质到现象的分析路线;特别是,由于我国社会制度和市场机制依旧很不健全,还不存在私利和公益自然和谐一致的制度基础,因而简单地搬用相对成熟市场下解决私人领域的新古典经济学范式来探究市场很不完善下的社会制度问题,就不可避免地导致囚徒困境泛滥。因此,我们在应用新古典经济学分析范式来解释尤其是在完善或设计法律制度时就必须非常慎重。     

Environmental risks,the judgment-proof problem and financial responsibility

This paper examines a setting in which a firm is liable to pay environmental damages caused by its activity but may not have sufficient wealth for repair of damages. In order to induce the full internalization of the environmental cost, the firm is required to demonstrate a financial guarantee from a solvent party that covers this cost. Since the firm and the guarantor are joint liable for the harm caused by the firm, it is in the interest of the guarantor to design the guarantee contract in order to induce the firm to take an adequate level of prevention. First, I show that financial responsibility regime may achieve the social optimum. Secondly, I identify a particular form of contract in the set of contracts which induce the socially optimal level of prevention. This contract is closed to an alternative risk transfer product referred to as the spread loss treaty.     

The association of alcohol-induced blackouts and grayouts to blood alcohol concentrations

The primary aim of this study was to investigate the association between measured blood alcohol concentration (BAC) and the presence and degree of amnesia (no amnesia, grayout, or blackout) in actively drinking subjects. A secondary aim was to determine potential factors other than BAC that contribute to the alcohol-induced memory loss. An interview questionnaire was administered to subjects regarding a recent alcohol associated arrest with a documented BAC greater than 0.08 g/dL for either public intoxication, driving under the influence, or under age drinking was administered. Demographic variables collected included drinking history, family history of alcoholism, presence of previous alcohol-related memory loss during a drinking episode, and drinking behavior during the episode. Memory of the drinking episode was evaluated to determine if either an alcohol-induced grayout (partial anterograde amnesia) or blackout (complete anterograde amnesia) occurred. Differences in (1) mean total number of drinks ingested before arrest, (2) gulping of drinks, and (3) BAC at arrest were found for those having blackouts compared with no amnesia; while differences in drinking more than planned were found between the no amnesia and grayout groups. A strong linear relationship between BAC and predicted probability of memory loss, particularly for blackouts was obvious. This finding clinically concludes that subjects with BAC of 310 g/dL or greater have a 0.50 or greater probability of having an alcoholic blackout.     

R&D subsidy games: a cost sharing approach vs. reward for performance

This paper investigates government subsidy games for private sector research and development (R&D) in a two-country two-firm intra-industry trade model. Two funding structures are compared: ??cost sharing?? vs. ??reward for performance.?? Both the theoretical evidence and the results of a Monte Carlo simulation suggest that cost sharing is associated with higher social surplus and quality improvement because it prompts the firm to do more R&D. In a cost sharing program government and firm R&D are always complements. In the reward for performance program government and firm R&D may be complements, but are usually substitutes. In the Monte Carlo results the average firm contribution to R&D expenditure is actually negative with a reward for performance funding structure??raising the question of whether it might be construed as corporate welfare. Finally, the paper characterizes funding priorities for both structures in the case when subsidy dollars are scarce and when they are not.     

没收违法所得的合宪性分析——基于德国刑法上特别没收合宪性改革的启示

没收违法所得是不是行政处罚或刑罚,并不取决于采取总额原则还是净利原则,还需要从其目的上进行判断。财产权属于法律上形成的基本权利,立法机关在确定财产权的保护范围时享有形成自由。违法所得不属于宪法上私有财产权的保护范围,由此也否定了没收违法所得的制裁属性。无论刑法上还是行政法上的没收违法所得更多的是一种矫正不公平财产秩序的措施,与民法上不当得利返还的理由类似。当然,立法在规定没收第三人的获利以及没收前是否对受害人进行退赔时,涉及到对第三人和受害人的私有财产权的限制,应当进行合宪性分析,避免对其私有财产权构成侵犯。     

Cost-benefit analysis for global public–private partnerships: an evaluation of the desirability of intergovernmental organizations entering into public–private partnerships

This paper explains the use of cost-benefit analysis for the evaluation of global public–private partnerships that combine international intergovernmental organizations with national governments, businesses, and the non-profit organizations of civil society. The partnerships allocate resources to projects that are socially desirable from an international perspective, yet without the global partnerships will not be performed. Cost-benefit analysis can identify and compare the social and the private costs and benefits of the projects, thereby identifying cases where global public–private partnerships will provide socially desirable results when markets alone will not. Cost-benefit analysis can assess the necessity and the sufficiency of strategies proposed by the partnerships. The paper discusses modifications to cost-benefit analysis required for its use in evaluations of the global public–private partnerships, explaining the need for market-centered valuations, but also explaining the role of alternative social valuations.     

试论劳动合同性质定位

在探析国内外关于劳动合同性质问题的理论观点及劳动合同所依存的社会经济条件的基础上,提出劳动合同应是一种私法主导兼具公法性质的复合性质的合同类型.此种定位,在我国社会主义市场经济条件下,具有重要的现实意义.     

The importance of “spillovers” in the policy mission of the advanced technology program

Government policies like the Advanced Technology Program (“ATP”) are intended, at least in part, to remedy the “market failure” inherent in the fact that a significant portion of the social benefits of new knowledge and technology are not captured by a firm that invests in R&D. ATP’s project selection, and its evaluation of the impact of its program, can be made more effective by explicitly incorporating the analysis of such “spillovers.” For project selection, this means identifying technological, organizational and economic factors that tend to oint to a large “spillover gap,” or deviation between the social and private rates of return to a proposed project. For program evaluation and assessment, it means adapting existing study methods that measure social returns to innovation in ways that explicitly capture spillover effects. This paper is based on a study that I performed for the ATP, Economic Analysis of Research Spillovers: Implications for the Advanced Technology Program, NIST GCR 97-708. I have benefited from comments and useful discussions with Zvi Griliches, Jeanne Powell, Rosalie Ruegg, and Richard Spivack. Some of the ideas in this paper grew out of previous joint research with James Adams. The views expressed herein are my own, however, and should not be attributed to any of these individuals or to the ATP.     

STRUCTURAL CONDITIONS AND RACIAL HOMICIDE PATTERNS: A LOOK AT THE MULTIPLE DISADVANTAGES IN URBAN AREAS*

This research examines the differential effects of structural conditions on race-specific victim and offender homicide rates in large U.S. cities in 1990. While structural theories of race relations and criminological explanations are reviewed, particular attention is given to those structural theories that highlight racial competition, economic and labor market opportunity, and racial segregation as essential for an examination of racially disaggregated homicide offending. The effects of these and other structural conditions are estimated for four racially distinct homicide offending models—black intraracial, white intraracial, black interracial, and white interracial homicides. The results suggest that the structural conditions that lead to race-specific victim and offender homicide rates differ significantly among the four models. Economic deprivation and local opportunity structures are found to influence significantly the rates of intraracial homicide offending, while racial inequality contributes solely to black interracial homicide rates. In addition, our findings indicate that blacks and whites face different economic and social realities related to economic deprivation and social isolation. The differential impact of these structural conditions and other labor market factors are discussed.     

Undermining Gender Equality: Female Attrition from Private Law Practice

The number of women in the legal profession has grown tremendously over the last 40 years, with women now representing about half of all law school graduates. Despite the decades‐long pipeline of women into the profession, women's representation among law firm partnerships remains dismally low. One key reason identified for women's minority presence among law firm partners is the high level of attrition of women associates from law firms. This high rate of female attrition undermines efforts to achieve gender equality in the legal profession. Using a survey of 1,270 law graduates, we employ piecewise constant exponential hazard regression models to explore gendered career paths from private law practice. Our analysis reveals that, for both men and women, the time leading up to partnership decisions sees many lawyers exit private practice, but women continue to leave private practice long after partnership decisions are made. Gender differences in leaving private practice also surface with reference to cohorts, areas of law, billable hours, firm sizes, and career gaps. Notably, working in criminal law augmented women's risk of leaving private practice, but not for men, while taking time away from practice for reasons other than parental leaves, hastens both men's and women's exits from private practice.     

Business Ethics as Corporate Governance

The paper analyses ethical business codes as governance mechanisms, i.e. institutions which facilitate coordination of economic behaviour. Ethical business codes are compared to other social institutions (market solutions, government intervention, the prevailing social ethic), and their efficiency is evaluated in terms of transaction costs. A normative rationale for ethical codes is found when other institutions fail to achieve socially optimal outcomes, in particular when the firm has access to unique information. Some economic incentives are identified which induce firms to commit to socially optimal ethical codes but it is argued that economic forces will not in general be sufficient for optimality.     

Ready to leave the ivory tower?: Academic scientists’ appeal to work in the private sector

This study investigates the factors that shape the attitudes of scientists toward starting their own business or working in a private sector firm. The analysis is based on data collected from scientists working in the German Max Planck Society, a research institution devoted to basic science. We find that the scientists’ attractiveness of working in a private sector firm or of starting their own business differ considerably according to their academic discipline and the self-reported commercial potential of their research. The ability to take risks, prior work experience in private firms, and personal experience in cooperating with industry lead to a positive attitude towards switching to private sector employment or entrepreneurship. Strong willingness to freely distribute research findings is related to a low appeal of private sector work.     

大陆法系各国（地区）亲告罪立法之比较

告诉乃论制度对充分保障被害人权利、实现刑罚谦抑、促进刑事和解具有重要意义。大陆法系各国均规定了数量庞大的亲告罪,我国的亲告罪名却很少,类型也很单一。制约亲告罪范围扩大的真正原因在于我国亲告罪告诉机制的缺陷。我国刑法与刑事诉讼法对亲告罪告诉权的救济性规则缺乏,亲告罪与自诉罪混淆,告诉权与证明责任混淆,告诉制度不完善。通过归纳、比较各国刑事立法例中的优劣,认为我国可采被害人可自由选择自诉的混合起诉制,以弥补亲告罪告诉机制的缺陷。     

Insurance models and European climate change policies: an assessment

The paper outlines the role of insurance as an economic policy tool that can be used to address the issue of climate change. The magnitude of potential loss, the adverse social and economic consequences for millions of people and considerable fiscal strain imposed on government budgets by extreme weather events all indicate that governments can benefit significantly from the use of an insurance instrument capable not only of covering damage but also of providing an incentive for risk reduction behaviours. By examining the diverse insurance systems that exist in European countries and grouping them into five stylised models, natural hazards insurance is examined in terms of private and public involvement. The paper analyses the performance of different insurance models in relation to information imperfections (i.e. adverse selection and moral hazard) and market imperfections (i.e. charity hazard and transaction costs). In addition, the different models are examined in terms of the extent to which they incentivise mechanisms that facilitate the mitigation of greenhouse gas emissions, adaptation to the inevitable impacts of climate change and the development of climate risk finance management. Some concluding remarks are offered regarding the possible future development of a European insurance model as a means of developing an economically effective response to natural hazards caused by climate change.