什么是法学研究——民法学习的一点体会

研究生学习阶段的学习目标最为重要的是什么呢 ?我认为就是“研究” ,就是要把法律的概念、原则甚至体系拿来研讨 ,区别它的科学与谬误、正义与非正义 ,因此 ,这个阶段的学习不是当收音机 ,不只是接收他人的观点 ,而是要自主分析、积极讨论 ,提出自己的观点 ,其核心就是“研究”。     

Vote Switchers and Party Influence In the U.S. House

Party‐centered theories of Congress often rely on the critical assumption that some majority party members vote against their preferences when granting their leadership procedural powers, such as closed rules. Such an assumption renders these approaches ad hoc, and thus theoretically dubious, unless firm support for the assumption can be found. Firm support is elusive largely because it is difficult to separate party and preference effects. In this article, we produce a simple but critical test of the party persuasion assumption that largely avoids these measurement problems. Specifically, we use a “switcher analysis” (Krehbiel 1998) to compare votes on final passage of the legislation with the votes on the closed rule. Our analysis of all closed rule‐final passage vote pairs for the 104th–108th Congresses reveals vote patterns that cannot exist absent significant party effects.     

Guess who's coming to dinner? A preliminary model for the satisfaction of public opinion as a legitimate aim in sentencing

This paper provides a preliminary outline of a possible model of how the satisfaction of public opinion could be used in a rational system of sentencing. As public opinion data concerning the criminal justice system is becoming increasingly sophisticated and readily available, and public opinion clearly plays a role in the sentencing decision, a model whereby the satisfaction of public opinion may be judiciously and effectively incorporated into the sentencing system is urgently required. Some of the pitfalls of using public opinion data are also highlighted as a caveat to the feasibility of such a model. This revised version was published online in July 2006 with corrections to the Cover Date.     

Strategic Voting in Multi‐Office Elections

What are the incentives for voters to vote strategically when legislative policy outcomes are constrained by a system of checks and balances? The policy‐balancing theory supposes that moderate voters split their tickets because such splitting is the only way these voters can achieve moderate policy outcomes. I show that a different type of strategic voting, policy stacking, is characteristic of legislatures that endow the majority party with only limited institutional powers. Focusing on voting for the president and House of Representatives in the United States reveals that a substantial proportion of voters engage in policy‐stacking behavior, but very few engage in policy‐balancing behavior.     

Can Luck Egalitarianism Serve as a Basis for Distributive Justice? A Critique of Kok-Chor Tan’s Institutional Luck Egalitarianism

This paper examines whether Kok-Chor Tan’s institutional luck egalitarianism is successful as a pluralist luck egalitarian theory of justice and morality. In recent years, pluralist luck egalitarianism has become a salient theory of justice. Tan’s pluralist proposal for institutional luck egalitarianism is attractive because it seems to refute the metaphysical and practical challenges against luck egalitarianism. This paper demonstrates that, although Tan’s institutional luck egalitarianism is indeed a most sophisticated systematic pluralist theory of justice and morality, his argument fails because the application of luck egalitarianism to the domain of distributive justice and to the basic institutions of society is not justified from the luck egalitarian point of view. This paper concludes that Tan’s institutional luck egalitarianism does not succeed in demonstrating that his theory is an outstanding achievement of luck egalitarianism.     

“马锡五审判方式”的当代效度和限度——以“张院长新政”为考察对象

重彰"马锡五审判方式"是当下我国司法界的一个热点,各级法院都在尝试"马锡五审判方式"的运用,其中以"张院长新政"最有影响和最具代表性。"张院长新政"在重彰"马锡五审判方式"方面是不成功的,有过分机械的嫌疑。     

公司收购中目标公司控股股东的诚信义务探析

目标公司的控股股东既可以通过股东大会的表决机制作出有利于自身,但对其他股东不利的决定;也可以利用直接或间接任免高级经营者的人事权,支配经营者在面对收购时是否采取行动上,优先考虑其利益,漠视公司和其他股东利益,将目标公司置于被掠夺、蚕食的境地,少数股东则沦为被压榨、排挤的对象。为了公平地维护和实现公司、少数股东的利益,就必须使前者对后者承担诚信义务。虽然控股股东与董事的诚信义务在内容上均由忠实义务和谨慎注意义务构成,但二者并不完全相同。在不同的收购类型和各种具体的反收购行动中,控股股东诚信义务的内容也各有所侧重。     

论公司表意吸收争议及其法律救济

公司表意吸收是指公司股东会和董事会占多数表决权者以自己的意志取代少数表决权者的公司行为。公司表意吸收既可提高公司运作效率,也可使公司部分成员利用合法的表决程序转移公司利益。为了有效保护公司财产安全,对曲意运用公司表意吸收方法进行欺诈的法律救济措施是:运用现有法律资源限制决策层股东的表决额;建立有限公司股东对特定事项的否决权;建立异议股东的市值保全制度;将累积投票方式扩大至公司分红表决;建立异议股东的股份收购制度和完善股东的退出机制。     

The Strategic Use of Legislative Voting Procedures

Legislative votes can be taken by roll call—noting the position of each individual member—or by some form of indication (sitting or standing, shouting yea or nay, etc.)—noting only an aggregate outcome. Cameral rules define one method of voting as the standard operating procedure and how to invoke any alternative voting methods. We develop a series of hypotheses related to position taking to explain why, when procedures would typically lead to a vote taken by indication, legislators choose to vote by roll call—a means that makes it much easier for actors outside the chamber to observe the positions taken by individual legislators and partisan blocs. With data from Argentina and Mexico, we test these hypotheses regarding the strategic choice of vote procedures and their relationship to observed party unity.     

Disclosure of child sexual abuse: expressed emotions and credibility judgments of a child mock victim

Both lay persons and professionals believe that the emotions displayed by a child witness during disclosure of sexual abuse are a factor of importance when judging the child's credibility. Unfortunately, not all children display emotions according to expectations, leading to misjudgments, and possible miscarriage of justice. In the present study, we examined how lay people's credibility judgments were influenced by a child's displayed emotions during the disclosure of sexual abuse. Participants (n?=?119), viewed video recordings of a mock police interview of an 11-year-old child actor disclosing sexual abuse, displaying one of four emotional expressions (angry, sad, neutral, and positive). Results showed that participants were strongly influenced by the emotions displayed; in particular, the display of strong negative emotions (anger) or positive emotions during disclosure significantly reduced judged credibility. The credibility ratings predicted the participant? judgments of the defendant's guilt and the willingness to pass a guilty vote in a hypothetical trial.     

Co-option,coercion and compromise: challenges of restorative justice in Victoria,Australia

Restorative justice (RJ) encompasses a widely diverging set of practices whereby those most affected by crime are encouraged to meet, to discuss the effects of harms caused by one party to another, and to agree upon the best possible redress of harms when appropriate. In its inception in the late 1970s, RJ was conceptualized and developed as an alternative to formal criminal justice practices. Since this time, however, RJ has largely moved from being an alternative to criminal justice practices to an ‘alternative’ practice within criminal justice systems. This institutionalization has resulted in the significant growth of RJ practices, but has also resulted in RJ being used for criminal justice system goals that are at odds with the needs of victims or offenders. This paper examines the use of the Youth Justice Group Conferencing Program in Victoria, Australia. Drawing from interviews with conference conveners, our research highlights problems related to administrative ‘constraints’ and ‘co-options’ in conferencing in terms of referrals, preparation of conference participants, and victim participation. Following presentation of findings, we conclude with a discussion of implications for the use of RJ within a highly institutionalized setting.     

Social background and citizen–legislator congruence in candidate-centred systems

Legislatures are arenas where diverse policy preferences are honed into practical policy proposals. Given that legislative membership is a result of free democratic elections, there is an assumption that the attitudes and opinions of MPs are representative of the population as a whole. Thus, pre-legislative bargaining is founded on an unbiased sample of public opinion. However, considerable opinion incongruence exists between citizens and the political elite in many systems, potentially undermining this ideal democratic starting point for legislative business. Candidate-centred voting systems offer the potential to remedy this disconnect. While citizens tend to emphasise personal characteristics as an explanation for vote choice in one of the most candidate-centred systems in existence, proportional representation-single transferable vote, the disconnect of opinion congruence between citizens and elites persists. This paper finds that citizens’ emphasis on MPs’ personal characteristics when choosing representatives causes significant opinion congruence between citizens and elites on a demographic basis, particularly for under-represented groups such as women, younger citizens and those from lower socio-economic backgrounds, but aggregate congruence is undermined by the lack of demographic diversity among MPs.     

Voting Procedures for Complex Collective Decisions. An Epistemic Perspective

Abstract. In addressing a complex issue that is decomposable into several sub‐questions, a committee can use different voting procedures: Either it can let the committee members vote on each sub‐question and then use the outcomes as premises for its conclusion on the main issue (premise based‐procedure, pbp), or it can let the members directly vote on the conclusion (conclusion‐based procedure, cbp). The procedures can lead to different results, but which of them is a better truth‐tracker? On the basis of Condorcet's jury theorem, we show that the pbp is clearly superior if the objective is to reach truth for the right (= correct) reasons. However, if the goal instead is to reach truth for whatever reasons, right or wrong, there will be cases in which using the cbp turns out to be more reliable, even though, for the most part, the pbp will retain its superiority. In that connection, we also consider the truth‐tracking potential of a “sophisticated” variant of the pbp, which is sensitive to the size of the majorities supporting each of the premises.     

Splitting the Difference: Modeling Appellate Court Decisions with Mixed Outcomes

In rendering a decision in a particular case, judges are not limited to finding simply for the appellant or for the respondent. Rather, in many cases, they have the option to find for the former on one or more issues and for the latter on one or more other issues. By thus “splitting the difference,” judges can render a judgment that favors both litigants to some degree. What accounts for such mixed outcomes? Several theoretical perspectives provide potential explanations for this phenomenon. First, Galanter (1974) suggests that litigants with greater resources will achieve more favorable outcomes in the courts. Where two high‐resource, repeat‐player litigants meet in the appeals courts, these more sophisticated and successful parties may be able to persuade the court to render decisions with mixed outcomes that at least partially favor each party. Second, split outcomes may result from strategic interactions among the appeals court judges on the decisionmaking panel. Where majority opinion writers seek to accommodate other judges on the panel, split outcomes have the potential to serve as an inducement for more ideologically extreme judges to join the majority opinion. Finally, Shapiro and Stone Sweet ( Stone Sweet 2000; Shapiro & Stone Sweet 2002 ) propose that courts will sometimes split the difference in order to enhance their legitimacy (and ultimately enhance compliance by losing parties). For example, in highly salient cases, where noncompliance would more clearly threaten court legitimacy, judges may be more likely to split the difference in order to mollify even the losing party. We develop an empirical model of mixed outcomes to test these propositions using data available from the U. S. Courts of Appeals Database and find evidence supportive of all three theoretical perspectives.     

专业法律知识的媒体供给与社会正义的维护——基于昆山案中舆论、司法、媒体互动的考察

维护社会正义是舆论、媒体与司法实践的共同目标。从系统论看,三者之间的良性互动有助于社会正义的实现。司法案件舆论引导是三者互动的一种常见状态。在司法案件舆论引导中,供给专业法律知识能够促进三者的良性互动。本文以极具代表性的昆山案为例展开案例研究,发现新闻媒体通过法学专家向公众供给专业法律知识、司法机关自媒体向公众供给专业法律知识,能够促进舆论与司法的良性互动,实现司法案件舆论引导效果。社会正义的维护并非仅靠法治实现,司法与舆论、媒体的互动能够更好地落实法治的正义精神。     

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

The quest for empirical evidence of strategic judicial behavior has produced mixed results. This study finds such evidence in the decisions made while crafting an opinion. Central to any opinion is which precedents are cited and whether their scope is limited (negative treatment) or expanded (positive treatment). I look for evidence of strategic anticipation of en banc review in these decisions using an original dataset of published search and seizure cases from the U.S. Courts of Appeals from 1953 to 2010. A panel is less likely to negatively treat a precedent with which the full circuit is more closely aligned. Circuit preferences also have an effect on citation itself, but only when the panel is at least moderately aligned with a precedent. Moreover, the panel's own ideology is only a significant predictor of citation when the full circuit is favorably disposed toward a particular precedent.     

Justice Sensitivity and Cooperation Dynamics in Repeated Public Good Games

It is frequently observed that despite individual incentives to free ride, humans decide to cooperate with each other to increase social payoffs. In the current research, we address the effects of individual differences in justice sensitivity on cooperation. Using incentivized repeated public good games, we find that individual differences in justice sensitivity—the ease of perceiving, remembering, and reacting to injustice from the perspectives of an observer, beneficiary, or perpetrator, but not victim—substantially predicts cooperation in the absence of a punishment option. In contrast, when costly punishment is allowed for, cooperation becomes strategic as it also aims at avoiding subsequent punishment. If such a sanctioning mechanism is in place, justice sensitivity no longer predicts cooperation. The results regarding the degree of cooperation as reaction to initial non-cooperation of one’s counterparts highlight the role of justice-concerning personality traits for the sufficient provision of public goods, as sanctioning institutions are not always possible, effective, or suitable.     

对我国刑事鉴定结论的反思

近年来备受社会关注的黄静案、代义案以及连丽丽案从不同角度揭示了刑事鉴定结论中所存在的三大弊端:公安机关"自侦自鉴",对是否鉴定以及鉴定人的选择享有决定权;在立案侦查阶段的鉴定结论未经法院认证便当然地被作为证据使用;鉴定结论的采信标准不一,同时这三个案件也让我们看到了若要消除这些弊端,必须将关注.a集中在立案和侦查阶段....     

Chapter 1: The Subject and Functions of Forensic Psychiatry

Forensic psychiatry is a science closely associated with philosophy and the legal and medical disciplines. It is inseparable from general psychiatry, but has its own particular functions. Forensic psychiatry, conceived as a branch of Soviet public health, is at the service of Soviet justice and is a contributing factor in — and, indeed, has as one of its chief tasks — the consolidation of socialist legality. In evaluating the mental condition of the accused in a criminal case, forensic psychiatrists must not only diagnose mental illness and treat the patient: they must also determine the extent to which the existing medical disorders affect the individual's ability to account for and govern his actions. In an examination of a convicted person, his ability to serve out his sentence is weighed. In determining a person's competence in a civil action, his "capacity to conduct his affairs rationally" is ascertained.     

Bill Passage Speed in the US House: A Test of a Vote Buying Model of the Legislative Process

This article constitutes a test of central tenets of vote buying theories using data on the number of days it takes to pass important bills in the US House. Survival analyses of a model of bill passage length provide confirmatory evidence of vote buying by presidents and the congressional leadership. Bills that attract buyers of votes to maintain the status quo are shown to pass more quickly than those that do not. Bills on the president's agenda and those that are relatively close to members' ideal points also pass quickly. The analyses furnish some interesting insights into possible efforts to make the legislative process quicker.