《道德和法律理论中的难题群》

书名 :ＴｈｅＰｒｏｂｌｅｍａｔｉｃｓｏｆＭｏｒａｌａｎｄＬｅｇａｌＴｈｅｏｒｙ作者 :ＲｉｃｈａｒｄＡ .Ｐｏｓｎｅｒ出版 :ＴｈｅＢｅｌｋｎａｐＰｒｅｓｓｏｆＨａｒｖａｒｄＵｎｉｖｅｒｓｉｔｙＰｒｅｓｓ,1999,32 0 ｐｐ ;Ｃａｍｂｒｉｄｇｅ ,ＭａｓｓａｃｈｕｓｅｔｔｓａｎｄＬｏｎｄｏｎ ,Ｅｎｇｌａｎｄ .评论人 :ＩｒａＬ .Ｓｔｒａｕｂｅｒ,ＤｅｐａｒｔｍｅｎｔｏｆＰｏｌｉｔｉｃａｌＳｃｉｅｎｃｅ ,ＧｒｉｎｎｅｌｌＣｏｌｌｅｇｅ .Ｅｍａｉｌ:Ｓｔｒａｕｂｅｒ@ｇｒｉｎｎｅｌｌ.ｅｄｕ译者 :陈欣新校者 :吴玉章《…     

Free Market Anti-Formalism: The Case of Richard Posner

This paper analyses the impact of the Law and Economics movement on legal decision making. Focussing on the position of the leading intellectual figure of this movement, Richard Posner, the author shows how his theories imply a silent revolution in American jurisprudence. Starting from the criteria of economic efficiency and wealth maximization, seen in the light of American pragmatism, Posner upholds anti-formalist interpretation of statutor law by judges based on the principles of free market economics. His theory starts from the assumption that statutor law has become more and more ambiguous and open-ended and thus, as in the case of antitrust law, judges can freely interpret legal provisions on the basis of free market postulates. This position has broader implications in the debate about the meaning of the rule of law: Posner's position implies abandoning the emancipatory core of the liberal tradition.     

信号传递、社会规范与法律——评Eric A.波斯纳的《法律与社会规范》

长期以来,对社会规范的研究并不是法律经济学的重心,人们更关注正式的法律制度.这表现在,当权利交换需要一个初始界定时,当个体理性与集体理性发生冲突时(如囚徒困境[1]、公地悲剧[2]以及其它的集团行动问题[3]),人们更容易想到的是法律,而不是社会规范.     

O.J.'s defense: A reductio ad absurdum of the economics of Coase and Posner

A reductio ad absurdum takes the principles of a doctrine, applies them exactly as their creators did only to an entirely different subject and with horrendous results, and thus shows what absurd conclusions are logically compatible with the original thesis. This article applies the tenets of the Chicago law and economics tradition, as adumbrated by two of its most distinguished practitioners, Coase and Posner. It shows that on the basis of this canon a case can be made out for freeing O.J. Simpson—even if he did indeed kill his wife. The article is an attempt to show that the libertarian reliance on personal and private property rights is a much more robust thesis than the Chicago precept of wealth maximization.     

马克思与波斯纳的经济分析法运用比较

当代西方法律经济学中所运用的经济分析法与马克思主义法学甚至哲学中的经济分析法具有相同的名称甚至某些近似的表象.本文分别论述了这两种经济分析法的不同含义--一个是为了分析的便利而提出的学理假定,一个是对人类社会发展的客观规律的描述与预测;它们的出发点和着力点--一个是别具体事件和行为的微观阐释,一个是对人类社会整体的宏观解读;以及它们明示或暗示地确定的衡量标准--效率与进步;从而指出了这二者之间的区别与联系.     

Here comes the judge: the influence of judge personal characteristics on federal sexual harassment case outcomes

This study explored the effects of judges' personal characteristics (gender, race, age, and political affiliation) and case characteristics on the outcomes of federal cases of hostile environment sexual harassment. Results revealed that even after controlling for the effects of relevant case characteristics (e.g., severity of the harassment), judges' personal characteristics influenced case outcomes. Specifically, younger judges and Democrat judges were more likely to find for the plaintiff (the alleged victim of harassment). The probability that the decision would favor the plaintiff was only 16% when the case was heard by an older judge but 45% when heard by a younger judge. The probability that the decision would favor the plaintiff was only 18% when the case was heard by a judge who had been appointed by a Republican president but 46% when the judge had been appointed by a Democrat president.