No long-term solutions in current health care reform proposals

As this article goes to press, it is nearly impossible to predict what sort of health reform plan will ultimately be passed, if any, and whether any form of long-term care coverage will be included. The need for such coverage will not, however, diminish with the close of the current congressional session and is likely to be a topic of debate for some time. The entire process of health reform legislation has been one of paring down initial hopes and expectations, and it may take many more years, until an even larger segment of our population is aged, before log-term care coverage becomes politically and fiscally desirable enough to withstand the political process.     

非法证据排除中的“实质说理”与改革建议

关于非法证据排除规则,我国2012年《刑事诉讼法》确立了“非法言词与实物区别排除”,或者说,“强制排除与裁量排除相结合”的模式。当前,非法证据排除说理是整个刑事裁判文书说理的一个“短板”。在司法实践中,许多瑕疵证据、非法证据通过“补正”、“合理解释”被采纳,但缺乏“实质说理”。强化以审判为中心的诉讼制度改革,需要强化非法证据排除的“实质说理”。这一完善过程是艰巨的,涉及实体规则、程序规则、配套制度等方面的综合改革。从长远来看,有必要建构一独立自洽的针对证据合法性调查的“诉中诉”程序。     

服务侵权责任是独立的质量侵权责任

服务侵权责任是一项独立的质量侵权责任。承担服务侵权责任的前提条件是服务存在缺陷,即服务经营者所提供的服务不符合保障人身、财产安全的要求,包括服务设计缺陷、服务指示缺陷和服务过程缺陷。服务侵权责任的归责原则应采取过借推定兼顾公平原则。服务侵权责任与产品责任、建筑侵权责任构成我国“三位一体”的质量侵权责任制度。     

Tort Law for Cynics

Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a legal requirement to pay damages for breach of that duty. This article defends the cynical view, arguing that it easily explains doctrines supposedly only explicable from an idealist perspective, and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest view. The article argues that idealism is often undesirable, having costs, both pecuniary and non‐pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.     

Neoclassical Difficulties: Tort Deterrence for Latent Injuries*

Economists often claim that the tort system leads firms to provide consumers and workers with the socially optimal level of safety. Moreover, in the case of work-related hazards, employers are alleged to have another source of incentives to take precautions. If wages are sensitive to job-related risks, employers should spend money to reduce such risks when, by doing so, they can save more in wage costs than the costs of the precautions taken. Whatever their merits in other settings, in the case of latent injuries such as workplace exposure to asbestos neither tort nor market are likely to provide an optimal level of safety; indeed, they have failed to do so in the examples we discuss. We find that the introduction of a long delay between the exposure to a hazard and the onset of symptoms introduces a variety of empirical complications that overwhelm the assumptions on which the neoclassical model rests. Our conclusion is thus that comparisons between tort and alternative systems of deterrence/compensation should start from an empirical assessment of how the tort system actually works (and doesn't work), rather than beginning with misleading theoretical claims about the system's optimality.     

The Alien Tort Statute: Blackstone and Criminal/Tort Law Hybridities

The importation of criminal law concepts into the area of civillaw is attracting increasing interest. The United States’Alien Tort Statute (ATS), though principally known for enablinginternational human rights suits to be filed in the domesticcourts of the United States, also imports criminal law notionsinto civil litigation. This article explores the hybrid natureof the ATS in the context of the development of internationallaw, and raises the question of whether ‘grandeur’is a principal reason for the ATS’ existence.     

Health care reform in Germany: patchwork change within established governance structures

Under the pressure of health care reform in the 1990s, interactions among the state, sickness funds, and providers in Germany are said to have entered a new era. We examine this new era by assessing both long-term developments connected to German statutory health insurance (SHI) and related short-term developments of the 1990s. Highly institutionalized rules and practices provide little opportunity for abandoning the historical path of two primary factors: the self-governance of SHI and a strong tradition of a semisovereign state. Some opportunities exist for introducing new ideas, rearranging priorities, softening rules, and adding new complex rules and procedures in a fairly fragmented policy-making system, perhaps even because of fragmentation. Yet reforms that depart from the status quo are severely limited by strong legal and administrative traditions and established rules of the game. These restrictions tend to reinforce state intervention, prevent the emergence of consistent and coherent visions of future health policy, and stifle policy innovation and implementation. In sum, reform measures tend to remain well within the priorities established within state and corporatist governance structures.     

On the use of IRMS in forensic science: proposals for a methodological approach

The flourishing number of publications on the use of isotope ratio mass spectrometry (IRMS) in forensic science denotes the enthusiasm and the attraction generated by this technology. IRMS has demonstrated its potential to distinguish chemically identical compounds coming from different sources. Despite the numerous applications of IRMS to a wide range of forensic materials, its implementation in a forensic framework is less straightforward than it appears. In addition, each laboratory has developed its own strategy of analysis on calibration, sequence design, standards utilisation and data treatment without a clear consensus. Through the experience acquired from research undertaken in different forensic fields, we propose a methodological framework of the whole process using IRMS methods. We emphasize the importance of considering isotopic results as part of a whole approach, when applying this technology to a particular forensic issue. The process is divided into six different steps, which should be considered for a thoughtful and relevant application. The dissection of this process into fundamental steps, further detailed, enables a better understanding of the essential, though not exhaustive, factors that have to be considered in order to obtain results of quality and sufficiently robust to proceed to retrospective analyses or interlaboratory comparisons.     

学术自由:侵权与救济

学术自由侵权与其他侵权行为具有共性,但与一般侵权行为相比,行为的主观方面和行为后果不是认定学术自由侵权的必备要素。从学术自由权成立的正当性出发,有三类限制或禁止学术自由的行为是应予允许的。在现代社会中,按照在实践中得到运用的广泛程度和实际效果,最重要的学术自由权救济机制包括宪法救济、一般诉讼救济以及通过结社进行的自力救济。     

Tort liability for breach of statute: A natural rights perspective

This essay applies Hegel's theory of remedies to the question of whether and when breach of a penal statute should attract civil liability in tort. For Hegel, the purpose of a remedy is to vindicate the human right to self-determination by refuting the claim to validity implied in intentional or negligent acts that infringe this right. Accordingly, in determining the civil effect of legislation, a distinction must be made between statutes that effectuate pre-existing rights and those which create new rights in the attempt to maximize aggregate welfare. The former should confer a civil right of action, the latter should not. Statutes that impose a duty of affirmative action should be enforced civilly if their purpose is to protect individual autonomy in circumstances where one person has gained control over the welfare of another. And statutes that protect persons from exposure to unreasonable risk should confer a civil right of action provided that the conditions of ordinary negligence liability are met. These conditions ought to supplant those connected with the legislative intent theory of statutory torts.