A note on the timing of investments in litigation contests

Allowing the plaintiff and defendant to choose the order in which they invest effort into trial, we show that the timing of litigation efforts is critically dependent on the level of defendant fault. For a high (low) level of defendant fault, the plaintiff invests after (before) the defendant’s investment choice. The equilibrium order of litigation efforts in turn is decisive for (a) the level of total litigation effort, (b) justice achieved by the litigation contest, and (c) plaintiffs’ incentives to bring suit. As a result, the endogenous timing bears vital implications for policy makers.     

Injunctive and reverse settlements in competition-blocking litigation

We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant’s activity. The reverse (payment) settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.     

Using statistics in employment discrimination cases.

Statistics play an important role in employment discrimination cases, and this role will expand as the legal profession becomes increasingly aware of the utility of the increasingly sophisticated statistical methods available. Historically, plaintiffs in employment discrimination cases have used statistics to establish prima facie cases concerning inequities in areas such as wage rates, personnel selection, promotion, layoff, and termination decisions. Defendants have also employed statistics to demonstrate the fairness of employment practices and policies--for example, by providing statistical evidence of the validity of a test used in personnel selection. This article provides an overview of the role of statistics and the major statistical techniques employed in discrimination cases.     

An introduction to the law and economics of class action litigation

The consolidation of similar claims for compensation into a single large class of plaintiffs is referred to as “class action litigation.” This practice can have both social costs and social benefits. For an example of the social benefits of consolidating separate claims, if the facts giving rise to the claims are substantially similar, then there may be significant savings in litigation and court administrative costs from presenting those facts once rather a multitude of times. There may, however, be significant social costs to creating a class of litigants and consolidating their claims. For example, this practice may empower those with frivolous negative expected-value claims to wring an unwarranted settlement from the defendant or defendants. The article surveys other sources of social cost and benefit from class-action litigation, reviews the empirical literature on these actions, and examines recent U.S. policy debates about reforming class-action litigation. The article concludes that class-action litigation can have substantial net social benefits but only if courts assiduously oversee the class certification process so as to identify and forestall the social-cost-generating aspects of class-action litigation.     

论刑事诉讼与行政诉讼的冲突及其解决

为解决刑事诉讼中出现的行政问题及行政诉讼中出现的刑事问题,避免行政诉讼与刑事诉讼审理结果的冲突,应将两类诉讼中的相关问题分为本诉附属问题与审判前提问题,允许法院刑事审判庭在特定情况下审理行政问题;在对同一行为究竟应承担刑事责任还是行政责任难以确定时,以“刑事责任优先”为处理原则。     

Deterrence and tax treatment of monetary sanctions and litigation costs

The tax treatment of monetary sanctions and litigation expenditures varies across legal jurisdictions and time. The effects of these different tax regimes – particularly, on crime deterrence – have not been fully explored. Instead, legal intuitions in court decisions and legislative reforms are found. This paper explores the effects of these tax regimes. It shows that our common intuitions are sometimes misguided, since we tend to ignore cross-effects between crime and litigation. For example, contrary to commonly held views, it is shown that non-deductibility of monetary sanctions may increase the level of crime, if litigation expenses are deductible. In addition, if deductibility of legal expenses depends only on a successful trial outcome, this may also increase amounts spent on litigation and time allocated to crime. As this paper shows, however, a complete deductibility regime, under which both monetary sanctions and litigation expenditures are deductible, maintains the pre-tax levels of crime and litigation expenditures for risk-neutral offenders. The paper further explores the effects of different tax reforms.     

证据排除规则的重构——以诉讼效率为视角

诉讼效率指诉讼收益与诉讼成本之间的差额。诉讼收益主要体现为发现真实,而诉讼成本主要体现为证据的收集与认定成本。证据排除规则既可以保障发现案件真实,亦可以保护其他合法利益,但我国目前的证据法没有能够从提供诉讼效率的角度去设计证据排除规则,我国诉讼法中不同的诉讼采用相同的证明标准是这一现象出现的重要原因。     

构建环境公益行政诉讼制度的设想

在《行政诉讼法》和《环境法》的修改中亟需确立环境公益行政诉讼制度。具体制度构建方面,可以考虑:赋予检察机关和公民、法人及其他组织同等的环境公益行政起诉权;设置更可行的诉讼管辖;合理确定举证责任的分配;增加判决种类,并且允许原被告双方和解;把公益诉讼纳入到法律援助的范围,同时注意平衡环境公益保护与行政权行使之间的关系。     

民事诉讼能力的影响因素

目的探索精神病人民事诉讼能力的影响因素,为民事诉讼能力量化评定奠定基础。方法以司法部司法鉴定科学技术研究所2002—2005年期间进行民事诉讼能力评定案例中的被鉴定人为研究对象,采用RTHD和自编的民事诉讼相关情况调查表,从医学要件和法学要件两方面探索民事诉讼能力影响因素。结果共纳入100例研究对象,分为有或无民事诉讼能力两组,在一般状态、认知障碍、情感症状、行为异常和法律心理能力等方面均存在显著差异,自知力、记忆力、智能对民事诉讼能力具有显著影响,两组社会功能也存在显著差别。结论在精神症状的影响下,精神病人理解表达、判断和控制能力等明显受损,不能正常地进行民事诉讼。     

McTear v Imperial Tobacco: understanding the role and limitations of expert epidemiological evidence in scientific litigation

The use of epidemiological evidence in litigation presents a range of challenges for both litigants and the courts. Given the complex statistical basis of epidemiology itself, it is possible that the technical and factual constraints associated with such evidence may fail to be properly considered by a trier of fact. The recent Scottish decision in McTear v Imperial Tobacco Ltd [2005] Scots CSOH 69 sets a high standard for the future use of epidemiological evidence and thoroughly evaluates the strengths and weaknesses of epidemiology generally. While epidemiological evidence remains controversial, and cannot in itself prove direct causation (nor causation in the individual), it is likely it will continue to be adduced as indirect evidence of general causation. It is also likely, however, that both the subjective and objective processes involved in epidemiological study design and reporting will be questioned by courts more thoroughly than has historically been the case. Further, failure by a party to adduce primary evidence (ie original data sets and interpretation thereof) of an epidemiological study which it seeks to rely on at trial will most likely undermine the value of adducing such evidence in the first place.     

从第三部门组织到行政诉讼被告——社会公务的司法监督路径

第三部门组织是具有组织性、非政府性、非营利性、公务性的社会公共服务组织,具有行政主体资格。由于行政主体资格对于行政诉讼被告资格的确立具有相当的意义,第三部门组织在运用权力组织公务时也因此获得行政诉讼被告资格。而对于个案而言,被告的最终确立还有赖于形式与实质相结合的规则与推定规则,同时运用司法权衡来判定。     

环境诉讼的“破”与“立”

环境纠纷有多种解决手段．行政协调、民事协商和法律诉讼。司法是社会正义的最后一道防线,而环境诉讼即绿色诉讼则是保护环境的最后一道防线。环境诉讼制度是为解决环境问题．保护国家、社会环境的公共利益和人类环境利益而采取的一项司法救济措施,其在国外已被广泛接受并形成较为成熟的诉讼制度。然而．环境诉讼在我国却很难走上正轨,因为起诉难,审理难．判决难,搜集证据难,执行难,胜诉难等许多问题的存在,出现了无人起诉、无人去追究责任的问题,致使环境污染者逃脱了应有的法律制裁．国家和社会利益遭受重大损失,可以说环境诉讼在我国立法和司法领域还是一片盲区．本文对我国环境诉讼发展的制约因素及如何发展我国环境诉讼制度进行了探讨．以求有效维护国家、社会的公共利益．进一步完善我国司法制度。     

对中外专利商标司法救济模式的调查分析和比较研究(下)

基于对我国的行政行为效力理论、诉讼机制、法院组织机构以及内部审理组织设置等因素的现状的分析,目前契合于我国制度背景的司法救济模式只能是在坚持固有的案件性质和法院审理组织之间一一对应的前提下,由行政审判庭审理专利复审委和商标评审委为被告的行政案件。     

The Effect of Gender and Relational Distance on Plaintiff Decision Making in the Litigation Process

Individuals’ choices about whether to resolve disputes via litigation can be affected by their relationship with the potential defendant. I explore whether gender also plays a role, with women being less aggressive in legal tactics than men as their connection to the potential defendant becomes closer. The study uses a survey design with vignettes to explore decisions across the legal process, including the willingness to sue, responses to settlement offers, and whether or not to appeal. The survey varies the extent of the relationship between the potential plaintiff and defendant and includes two types of injuries—a “slip and fall” and pay discrimination. The findings reveal that once litigation has begun, women have a greater preference than men for mediation in both types of cases, but they are more resistant than men to settlement in discrimination disputes. Neither men nor women's legal strategies seem to be affected by relational distance.     

论行政诉讼受案范围的扩展——基于经济法司法实施的思考

我国现行<行政诉讼法>规定的行政诉讼受案范围过于狭窄,不能满足经济法司法实施的需要,必须扩展.扩展的内容包括三个方面:诉讼标的应扩展到内部行政行为、抽象行政行为、非政府的公共管理行为;原告应扩展到授益行政中的利益相关者、潜在的利益受损者乃至公益代表;被告应扩展到非政府的公共管理者.     

The impact of litigation on nursing home quality

Government reports indicate that regulations have been ineffective in improving quality of care in many nursing homes. Some analysts feel that litigation against nursing homes may be the result of quality problems that are monitored during the inspection process, some contend litigation merely causes quality problems by diverting financial resources away from patient care, and some argue that litigation is duplicating the efforts of the inspection process. Given that the relationship between litigation and inspection-oriented measures of quality is not clear, this article explores the relationship empirically. When a significant relationship is found, the empirical results suggest that litigation is associated with a decline in inspection-oriented measured quality in the nursing home facing the legal claim. In contrast, litigation against a chain has a very different relationship to firm-level quality, where firms within a chain that is being sued have higher levels of inspection-oriented quality. Our results suggest that legal claims may result from quality problems that go unmeasured during the inspection process. However, more research in this area is warranted.     

Information technology in complex civil litigation in England and Wales

The use of information technology in civil litigation in England and Wales is in its infancy. In particular, litigation support systems are used by few,¹ and only within some solicitors’ offices and barristers’ chambers. The process of litigation support has not yet been taken from the solicitor's office into the court room.

Complex litigation is an area of legal practice particularly apt to benefit from the use of modern information technology both before trial and during the trial. Complex litigation involves such a diversity of issues, allegations of fact, and divergent opinions as to be difficult to retain within the short term memory of one human brain for the length of time taken by the exposition of the evidence and argument followed by judicial analysis and expression of the judgment.

This type of litigation also benefits from intervention by the Court in the preparations for trial, and in that endeavour information technology would also be most helpful.

In this article I shall try to review in very general terms what is done and what could be attempted. I shall generally concentrate on civil rather than criminal litigation.

The views expressed are my views alone.     

对构建行政公益诉讼之可行性探究

传统的行政诉讼只允许与本案有直接利害关系的人提起诉讼。当行政机关的违法行为或消极的不作为危及社会公共利益时。有关的社会主体便无法通过司法手段监督行政机关的行政行为。维护社会公共利益。公共利益是由个体利益所构成，若对受损的公共利益没有人去关注。那么，个体的利益受到威胁自然难免，而更重要的是等于对行政机关的这种违法行为坐视不管，放任自流。通过构建行政公益诉讼。赋予相关的社会主体提起行政公益诉讼的原告资格，既解决了公共利益受损的问题，又监督了行政机关行政权力行使的合法与否的问题，在目前既是可行的，又是必要的。     

Use and misuse of epidemiologic data in the courtroom: defining the limits of inferential and particularistic evidence in mass tort litigation

Medical epidemiology is the cornerstone for understanding the safety and efficacy of drugs and medical devices. Epidemiologic principles provide a statistical basis for determining correlations, and ultimately mathematical causation, between two series of events. Medical epidemiologic evidence and statistical inferences are useful and are now routinely accepted in the courtroom. The complex distribution systems that provide fungible goods throughout the country often preclude the identification of the specific source of an allegedly defective product. An expansion of the principles established in Summers v. Tice and Ybarra v. Spangard provide a logical and rational means for the courts to address products liability issues in cases involving multiple and unnamed defendants. This Article discusses the impact of epidemiology on the judicial process, both in the nature of judicial decision-making and in the nature of the law itself. Part III B discusses the "weak" and "strong" versions of the traditional preponderance of the evidence rule, as recast by recent products liability litigation. The remainder of the Article defines the useful and appropriate scope of epidemiologic evidence, concluding that "intentless" epidemiologic evidence alone cannot support an award of punitive damages.     

民事被告答辩制度的实证分析

民事被告答辩制度的完善,应当以答辩是被告的诉讼权利为基础。答辩所反映的被告与对方当事人、法院之间的诉讼关系,是答辩制度的本质所在。我国民事诉讼答辩制度应以答辩方式、答辩内容、不答辩的法律后果、答辩的救济程序等具体内容的完备为核心进行重构。