美国法学教育和法律职业养成

美国法学教育是普通法传统下三年制研究生层次的职业教育。美国法学院力求教会学生学会在广泛学科领域中进行法律分析、掌握法律技能和理解职业价值。美国法学教育也遭到了各种各样的批评,有人批评法学院是否有效地为学生从事法律职业提供了充分准备。本文对美国法学教育作了概括介绍,分析了美国法学教育面临的挑战,并介绍了对当前的法学教育模式所提出的批评等内容。     

Law School Climates: Job Satisfaction Among Tenured US Law Professors

In this article, we combine quantitative and qualitative methods to investigate why post‐tenure law professors of color and women professors within the US legal academy are differentially dissatisfied with their work lives. Previous social science research has indicated lingering difficulties for professionals from traditionally marginalized groups as they advance to higher levels. Post‐tenure law professors have been understudied relative to similar senior‐level professionals. Mixed methods allow us to isolate institutional structure and implicit cultural bias as key mediators of this dissatisfaction, converging on issues of respect, voice, and collegiality as crucial. We use the example of the legal academy to show how empirical research can shed important light on the realities of legal professionals—here, the faculty who are training the next generation of US attorneys. Following in the new legal realist tradition, we demonstrate the power of mixed empirical methodologies for grasping social realities pertinent to law.     

美国惩罚性损害赔偿判决在外国的承认与执行

惩罚性损害赔偿是英美法系侵权法与合同法中的一项制度。惩罚性损害赔偿判决在大陆法系国家的执行引发了诸多法律问题。各国基于对判决的性质、对“公共秩序保留”原则的运用及一些程序性问题的不同认识 ,对惩罚性损害赔偿判决作出了不同的处理。     

Undocumented consciousness: Citizenship and illegality in the lives of US citizen youth

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.     

美国法学教育模式利弊检讨

现代意义上的美国法学院始于哈佛法学院院长兰戴尔的法律教育改革,他在教育层次、教育方法、师资等方面为大学法学院设立了标准,法学教育也由此从实务界独立出来.但在法学院追求卓越的过程中,矛盾也日益突出.法学院作为大学专业学院不得不在理论与实践之间寻求平衡,以兼顾教授的学术自由、学生的现实要求与实务界的压力.总的来说,美国法学院在学院定位、教学模式、培养目标等方面存在深层次的矛盾,值得做出认真检讨.     

The costs of class actions: allocation and collective redress in the US experience

Once a preserve of the American legal landscape, the class action device today transcends geographic boundaries. In the past decade, efforts have intensified to establish collective litigation instruments in diverse legal terrains outside the United States—including Europe—often with the common goal of allowing some form of collective legal redress while avoiding perceived disadvantages of class actions in the American experience. Today more than ever, from legislators to litigants to scholars, European reformers face the challenge—and the opportunity—of making fundamental choices about the scope and shape of the collective legal remedies they wish to make available. Choices about the shape of the class action device reflect foundational judgments about the proper allocation of costs, and there is much from the US experience that can inform Europe’s prospective reformers. This article describes the history and current status of class action rules in the US, and then compares class actions and another form of extra-compensatory damages—one type of punitive damages—as means of doing the same thing. Although neither punitive damages of this sort nor class actions generally have traditionally existed in civil law systems, they both—and especially this particular form of punitive damages—can, from an economic view, be made to vindicate the same kind of social cost accounting goals. By considering these legal devices together, we hope to shed light on crucial choices facing Europe as it grapples with how best to provide collective legal redress in light of the lessons of the US experience with class actions.     

A comparison of student legal issues perceptions held by chief student and chief legal affairs officers: a study of metropolitan universities in the US

This study explored the similarities and differences of the perceptions held by chief legal and chief student affairs officers with regard to student legal issues. The study follows an earlier project published by Education and the Law (9(1), pp. 41‐49) which solely examined the perceptions of chief legal affairs officers. In the present study, there was a significant difference in the perceptions of chief student affairs and chief legal affairs officers with regard to which student legal issues will be litigated in the next 10 years. Chief student affairs and chief legal affairs officers prepare for student legal issues in a very similar fashion. Both officers make use of legal conferences, student affairs conferences, continuing education, and professional literature. There appears to be many chief student affairs officers who attend legal conferences and chief legal affairs officers who attend student affairs conferences in order to better prepare for future student legal issues.     

论我国资产证券化的法律风险——从美国次贷危机谈起

随着美国次贷危机的蔓延,我国资产证券化的法律风险不容忽视。在确认资产证券化的安全价值并强化风险隔离机制的同时,需要关注资产证券化立法自身缺陷所引起的法律风险。     

Small‐Group Dynamics,Ideology, and Decision Making on the US Courts of Appeals

There is some evidence that judges who specialize in particular legal areas vote in more ideologically consistent ways than do nonspecialists. Upon replicating those individual results across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on ideology by specialists affects decision making by others on a three‐judge panel. We find that judges who serve with a specialist are especially likely to vote in a manner consistent with the ideological position of the specialist with whom they serve. These results suggest that specialization has the potential to facilitate panel effects across numerous legal policy areas.     

Examining the constitutionality of Internet filtering in public schools: a US perspective

The use of Internet filters in public classrooms in the USA has been intensely debated, both in terms of its effectiveness and legality. The debate pits concerns to protect students from indecent material against issues of unconstitutional censorship. This paper examines the legal issues addressed in various rulings by the US Supreme Court pertinent to issues raised in the debate over the constitutionality of filtering in the classroom. The rulings and opinions offer valuable insights into the legal issues raised in this debate.     

The Effects of Legal and Extralegal Factors on Detention Decisions in US District Courts

The Bail Reform Act of 1984 changed the law dictating release and detention decisions in federal court. Since its passage, few studies have examined judicial decision-making in this context. Legal research enables us to account for the structure and interpretation of federal detention laws and to analyze previously neglected measures of legal factors in our analyses. We use US Sentencing Commission data on a sample of defendants who were sentenced in 2007 (N?=?31,043). We find that legal factors—particularly length of criminal history, having committed a violent or otherwise serious offense, and having committed the offense while under supervision of the criminal justice system—have the strongest relationships with the presentence detention outcome. A defendant’s age, race, and ethnicity have weaker relationships with detention. When we compare defendants who are similarly situated with respect to legal factors, the probability of detention is similar regardless of age, race, and ethnicity.     

美国2009年《个人消费者金融保护署法案》及其对我国金融监管法制的启示

为应对金融危机,保护金融消费者利益,加强对金融机构的监管,预防金融系统性风险的发生,奥巴马政府酝酿对美国金融监管体系进行彻底改革,其改革方案的核心就是设立个人消费者金融保护署。对于金融监管法律存在诸多缺陷、金融消费者权利保障不到位以及没有构建应对系统性风险的我国金融法律制度来说,美国2009年《个人消费者金融保护署法案》在金融消费者权利保护及存在系统性风险金融产品及服务监管方面是一个可以借鉴的“他山之石”。     

A comparison of the Russian 13% flat rate PIT evasion stratified contributions and the US tax schedule

This paper reviews the existing literature on consumer credit reporting, the most extensively used instrument to overcome information asymmetry and adverse selection problems in credit markets. Despite the copious literature in economics and some research in regulatory policy, the legal community has paid almost no attention to the legal framework of consumer credit information systems, specially within the context of the European Union. Studies on the topic, however, seem particularly relevant in view of the establishment of a single market for consumer credit. This article ultimately calls for further legal research to address consumer protection concerns and inform future legislation.      

Public charge,legal estrangement,and renegotiating situational trust in the US healthcare safety net

US immigration law increasingly excludes many immigrants materially and symbolically from vital safety-net resources. Existing scholarship has emphasized the public charge rule as a key mechanism for enacting these exclusionary trends, but less is known about how recent public charge uncertainty has shaped how noncitizens and healthcare workers negotiate safety-net resources. Drawing on ethnographic observations and interviews with 80 safety-net workers and patients in three US states from 2015 to 2020, I argue that intensifying anti-immigrant rhetoric surrounding public charge has extended a sense of surveillance into clinical spaces in previously unexamined ways. Drawing on theories of medical legal violence, system avoidance, and legal estrangement, I demonstrate how these dynamics undermined immigrants' health chances and compromised clinic workers' efforts to facilitate care. I also reveal how participants responded to this insinuation of legal violence in healthcare spaces by promoting situational trust in specific procedures and institutions.     

On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

Law plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non‐bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so‐called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.     

美国核电安全与法律规制

日本强震引发的核污染事件对全球核电安全管理敲响了警钟。美国是世界的核电大国,多年来运行着一套全面、协调、成熟的法律规制体系,其系统化的法律法规、易于操作的法律制度与权威高效的职能主管部门,在保障全美核电安全发展进程中发挥了重要作用;其运行法律规制体系与经验做法对我国核电安全发展也是很值得借鉴与参考的。     

Narcotics interdiction at sea: UK‐US cooperation

This article examines, from a legal perspective, the nature and extent of UK‐US co‐operation in the interdiction of the traffic in narcotic drugs by sea. In particular, it addresses the background to, the provisions of and practice under the 13 November 1981 Exchange of Notes between these two states on this subject and draws certain conclusions concerning both the adequacy of that Agreement and whether it constitutes an appropriate model for use elsewhere.     

Economic status,social status,and rate of internationalization in US law firms

We note that in the legal industry, socially constructed status may be an especially powerful type of firm position, and may also relate to internationalization through opening offices in new foreign markets. Hence, in this analysis we offer the first effort to simultaneously consider relationships between socially derived firm status and internationalization, and economic status and internationalization in a legal industry context. Specifically, we use longitudinal data on large US corporate law firms from 1984 to 2008. We find an inverted U-shaped relationship between social status and rate of internationalization. Additionally, we identify an inverted U-shaped relationship between economic status, or domestic market share, and rate of internationalization.     

简评美国《统一商法典》第九篇担保制度

美国《统一商法典》之第九篇"担保交易",创造性地建立了一套标准化的担保机制。该法通过对担保类型的简化,及对担保利益的附着、完善、实现等正当程序的详细规定,充分贯彻了法律的秩序价值和效益价值,是现代动产担保交易法律制度的完美典型,值得我国动产担保立法借鉴。     

The Adaptive Capacity of Markets and Convergence in Law: UK High Yield Issuers,US Investors and Insolvency Law

This article examines the increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: where the market is poorly adapted to the legal environment and reinforces other pressure for change, where the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and where both legacy and adapted structures exist, potentially pulling in different directions at the same time.