Economics of court performance: an empirical analysis

This paper proposes an empirical analysis of Spanish court performance using the economic approach. An econometric model will be estimated in order to answer two basic questions: (1) why some courts’ output it is greater than others? (2) Could courts produce a higher output using their actual resources? In addition it will be determine, by means of an analysis of variance (ANOVA), whether courts showing higher than average output have dictated resolutions with a higher reversal rate.     

Even criminals take a holiday: Instrumental and expressive crimes on major and minor holidays

Based on routine activity (RA) theory, the authors hypothesized that crime rates would vary with both the type of crime and the type of holiday, with violent crimes occurring more frequently and property crimes occurring less frequently on major holidays that brought families together in the home. It was also hypothesized that minor holidays would have little or no impact on crime rates. These hypotheses were tested by subjecting data on calls for service in Minneapolis, Minnesota, in 1985, 1987, and 1988 to time series analyses. After controlling for time of day, day of week, month, four weather variables, the first day of the month, linear trend, and autocorrelation, regression analyses indicated that both violent and property crimes were significantly related to major (or legal) holidays, whereas neither type of crime was more likely to occur on minor holidays. Crimes of expressive violence were significantly more prevalent on major holidays, whereas property crimes were less frequent on those days.     

Political crime and corruption take center stage: introductory notes

Crime, Law and Social Change -     

Looking at Prediction from an Economics Perspective: A Response to Harcourt's Against Prediction

This article discusses Bernard E. Harcourt's Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007 ). The book opposes the use of probabilistic methods, such as profiling, on efficiency, equity, and jurisprudence grounds. By contrast I argue that profiling is always efficient, that there is no theoretical flaw in reliance on actuarial methods, as long as they are implemented properly. I also show that the equity-based criticism of reliance on actuarial methods (Harcourt's ratchet effect argument) is based on two questionable assumptions: that profiling is perfectly efficient (as zero deterrence is assumed), and that the police are making an obvious logical mistake, by gradually increasing the extent to which they target the group with the higher offending rate instead of targeting only them in the first place.     

“牢头狱霸”问题与我国囚犯管理的制度选择——基于博弈论的法经济学分析

牢头狱霸现象在我国的监狱和看守所中长期存在，国家机关希望通过法律和政策对其进行打击，但这种现象却屡禁不止。对于牢头狱霸的产生原因和解决方式，相关的法律经济学分析尚属空白。本文通过非合作的完全信息静态博弈理论对新老囚犯的行为进行分析，揭示了在管制资源不足的状况下，管理者在制度选择时宁可冒着承担法律责任的风险，依然选择产生牢头狱霸制度的深层原因和动机。在此基础上，本文还进一步分析了这种非正式制度的优势和不足，并对我国的狱政管理提出相应的立法和政策建议。     

知识产权变动登记效力模式探析——以专利权为例

专利权作为绝对权,在变动过程中关涉不特定多数人利益,因此其在变动中的公示方式及其效力模式的选择至关重要。通过分析,在我国现行法律体系下,专利权变动宜采登记证明主义和登记生效主义,但在应然层面上,或许采登记证明主义和登记对抗主义更为合适。专利权变动登记模式可以适用于整个知识产权。     

Finding cover: Legal trauma and how to take care of it

As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable social problems more successfully than attempts formally to enforce applicable law. This revised version was published online in November 2006 with corrections to the Cover Date.     

When you reach a fork in the road, take it: science and product development as linked paths

There is a simple underlying message in this discussion, which has three parts. First, science has the capacity to generate new knowledge and harness that knowledge in the cause of developing products and technology that can reduce disease burdens among developing nation populations. Second, intellectual property is a tool to use in order to insure that new knowledge is not expropriated and exploited in a manner that threatens the ability to provide products and technology to poor people at an affordable price. Third, and finally, academic scientists need to understand that they can stride both pathways of the R&D road, remaining involved in generating basic knowledge while participating in the application of that knowledge towards product development and, through the use of best practice IP management, making it available in resource-poor environments. In order for this to happen, academia needs to maintain bridges to the private sector, while assiduously avoiding financial conflicts of interest, a topic not discussed in this paper. Academic scientists, whether already established or still completing their education, need access to training modules that allows them to define the challenges of the high disease burdens in the third world in human, and not just in consumption or dollar, terms. They also need education regarding the problems they work on, in order to engage them in the technology transfer from academia to the private sector; promote collaboration with scientists in the developing world; provide them with enough insights into the process and how it operates so that they know about the terms of any agreements with the private sector that would prevent poor people from accessing the ultimate product; and finally "reward" them in the academic system by advancement based on applied and field-based international translational and operational applied research. If these education programs develop and expand to increasing numbers of people in the research sector of academia, the number of people taking both paths described here will substantially increase. With that, the amount of research relevant to improving the health status--and indirectly, development--of developing countries will have been substantially increased.     

论消费者保护规制的理据——在经济和伦理之间

消费者保护的的经济性理据和理论性理据及二者的关系值得反思。消费者保护法及其实施,一方面应该更多地利用成本收益分析来提高效率,另一方面应该更多地关注培育共同体价值,促进社会正义、缩小贫富差距等非功利性目标。     

Exemplary Damages in Equity: A Law and Economics Perspective

In Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, the NewSouth Wales Court of Appeal held that exemplary (or punitive)damages are not available for breach of fiduciary duty or otherequitable obligation. The decision runs counter to authoritiesin Canada, New Zealand and some U.S. states. Punitive (exemplary)damages is a hotly debated topic in the United States and ithas attracted considerable interest among law and economicsscholars, particularly in the tort litigation context. Thisarticle analyzes the Digital Pulse case from a law and economicsperspective. Polinsky and Shavell (among others) argue thatthe function of punitive damages is to achieve optimal deterrencein cases where the probability that the plaintiff will discoverand successfully litigate the defendant’s wrongdoing isless than 1. Given the high costs of monitoring fiduciary behaviour,it might be tempting to conclude that exemplary damages shouldbe routinely awarded for breach of fiduciary obligation. Thearticle explains why this view is wrong. On the other hand,given the availability of gains-based remedies (the accountof profits and the like) for breach of fiduciary obligation,it might be tempting to conclude that exemplary damages arenever justified in fiduciary cases. The article explains whythis view is wrong too. The main conclusions are that: (1) exemplarydamages should be available for breach of fiduciary duty andthe like, but not as a matter of course; and (2) exemplary damageswere probably not warranted in Digital Pulse itself.     

论医疗告知义务——以经济学和法学为视角

医疗告知是医疗单位在医疗过程中的一项法定义务,是以患者知情同意权为其理论基础,是判定医疗行为是否存在过失的一项重要标准。我国目前医疗实践中医疗纠纷频发的主要原因在于我国医疗告知义务立法不完善以及学界对医疗告知义务研究甚少。文章以经济学和法学为视角,从医疗告知义务之经济学基础、医疗告知义务之法学基础、医疗告知义务之履行及其评判标准等方面,结合我国立法现状,就医疗告知义务进行了深入研究,以期为我国医疗实践和司法实践提供理论根据。     

Regulatory Appraisal: A Neglected Opportunity for Law and Economics

Governments are increasingly using cost-benefit analysis to appraise regulatory proposals. In this paper, the author reviews recent practice in the USA and UK. Drawing particularly on examples of analysis undertaken by the British Health and Safety Executive, he argues that a technique originally adopted to assess the merits of public projects is, as yet, insufficiently sensitive to some of the problematic aspects of the interaction between legal instruments and human behaviour. These aspects are the focus of much law-and-economics analysis and the value of regulatory appraisal would be enhanced by an increased input of such analysis.     

Layers of decision: Linking social definitions of corruption and willingness to take action

The literature available about social definitions of corruption is surprisingly discrete from that which addresses the issue of whistleblowing or the reporting of crime and corruption. The current study, however, empirically links the two. A survey of more than 1300 public sector employees was undertaken to explore: i) how and why public sector employees define some behaviours as corrupt; ii) factors which may hinder public sector employees taking action about corruption which they may observe at work; and iii) the link between i) and ii). The study found that within the New South Wales (NSW) public sector, views about what constitutes corruption are diverse and that this has a significant, though not exclusive, impact upon the action respondents said they would take in response to workplace corruption. The study discusses other factors which also impact upon the stated decision not to take action about corruption and suggests some possible courses of action for addressing these factors.The research upon which this paper is based formed part of the research program of the Independent Commission Against Corruption.