精神家园：心系何处与如何共建？

当代国人的精神处于传统与现代、东方与西方、理想与现实、精神与物质、价值理性与工具理性之间.在知识结构方面,人们受学校和家庭影响相对较大,同时也受到传统文化、马克思主义宣传等因素的影响.在信念信仰方面,传统观念与现代意识、个人的内在信念与外在的意识形态影响平分秋色,宗教的影响不算太大.在道德价值观方面,人们普遍认同那些多数人所认可普世价值和道德原则,但在实践中人们更为现实和关注物质利益,具体的价值判断则倾向于多样和多元.对未来生活的期盼是稳定与创新、平淡与奋斗兼而有之.对于中华文化的未来多数人抱有较大信心和希望,而这信心和希望又主要同加强民主与法制、提高公民素质和弘扬优秀传统文化的诉求联系在一起.为了迎接新时代的挑战我们必须进一步更新观念,改革制度,提高素质,弘扬中华文化,建设我们民族共有的精神家园.     

If You Build It,They Will Fill It: The Consequences of Prison Overcrowding Litigation

This article examines the consequences of prison overcrowding litigation for U.S. prisons. We use insights derived from the endogeneity of law perspective to develop expectations about the likely impact of overcrowding litigation on five outcomes: prison admissions, prison releases, spending on prison capacity, prison crowding, and incarceration rates. Using newly available data on prison overcrowding litigation cases joined with panel data on U.S. states from 1971 to 1996, we offer a novel and comprehensive analysis of the impact that overcrowding litigation has had on U.S. prisons. We find that it had no impact on admissions or release rates and did not lead to any reduction in prison crowding. Litigation did, however, lead to an increase in spending on prison capacity and incarceration rates. We discuss the implications of these results for endogeneity of law theory, attempts to achieve reform through litigation, and the politics of prison construction.     

Carry the Banner Where It Can Be Seen: Small Wins for Social Justice

In this article we address the following questions: How is oppression maintained? What resources enhance human welfare, thereby weakening oppression? and How can the systems of oppression be challenged and interrupted? Our response to the last question is: “Organize on the local level with real allies to effect small wins that encourage political participation.”     

Communicating Dissent in Judicial Opinions: A Comparative,Genre-Based Analysis

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

     

Litigation, experimentation, and reputation

This paper develops a multiple-plaintiff game with a correlation across plaintiffs' private information (damage levels). It argues that the defendant engages in experimentation to learn (or remain uninformed about) the plaintiffs' types and play tougher (or softer) in the initial case when another party may also have an interest in the suit.     

Costly Signals: Voter Responses to Parliamentary Dissent in Austria,Britain, and Germany

When Members of Parliament (MPs) disagree publicly with their party, this provides a signal to voters regarding both their political views and their character valence. We argue that the strength of this signal to voters depends on the personal career costs an MP incurs by dissenting. The greater the perceived costs of dissent to the MP, the more positively voters should react to dissent. In line with this theory, we use a series of conjoint analysis experiments in Britain, Germany, and Austria to show that: (1) dissent has a more positive effect on voter evaluations in systems where the costs of dissent are higher, and (2) more costly types of dissent have a greater impact on voter evaluations. These findings have important implications for understanding how voter evaluations of MPs depend on beliefs about parliamentary systems and how parliamentary institutions condition the link between voters and MPs.     

Research on Gender and the Law: Where Are We Going,Where Have We Been?

This article provides an overview of issues related to research on gender and the law. Following a discussion of the ways in which gender and the law interact, we assess the extent to which Law and Human Behavior (LHB) has addressed the issue of gender. Specifically, we present the results of our analysis of the role of gender in articles published in LHB from 1990 through 1996. We discuss the relatively few gender-relevant studies that appeared, as well as comment upon the attention given to gender by research with other primary foci. We then discuss various strategies for conducting gender research and their implications for research on gender and the law. We conclude by introducing the articles in this special issue on gender and the law, commenting on how they add to our accumulated knowledge in this area.     

Dissent and the Anarchic in Legal Counter-Culture: A Peircean View

The author analyses the role of dissent and anarchic thinking in modern legal culture. Such notions traditionally convey opposition to established authority and are essential for all free and open societies. In fact, the right to dissent and practising anarchic beliefs exist insofar as a true right of confrontation is guaranteed by the legal system. In this perpective, the author suggests some correspondences between dialogic thinking, that Peirce says allows all ideas to grow semiotically, and the development of the role of dissent in the legal culture. Generally speaking, the question concerns the well-known Peircean dichotomy between chance/spontaneity and lawfulness. This thesis is exemplified in detail looking at the history of US law, at its outset the direct consequence of a legal counter-cultural movement against British common law. Moreover, the possibility of dissent is written into the United States constitution. At least three modes of dissent are built into American law as legal counter activities: (1) voices of nondominant religions, (2) dissent within the legal system, e.g., dialogue among and within the courts, (3) challenging the legal system sanctioned by the right to civil disobedience and by other forms of reaction against an oppressive government.     

诉讼、人情与法治——现代法治视野中的诉讼人情化现象研究

通过诉讼程序严格依照法律规定解决社会纠纷是我国法治建设的一个重要内容。然而,在司法实践中因人情而不严格依照法律的规定作出判决或裁定的现象还在一定程度上存在。对我国的法治建设是一个重要的、应该正确认识并妥善解决的问题。通过分析当代社会中诉讼人情化这一现象,探讨其产生和存在的原因,提出解决这一问题的思路。     

强化调查取证 强调诉讼提示 裁判文书说理——呼伦贝尔中级法院加强证据确保“案结事了”

呼伦贝尔市中级人民法院紧紧围绕审判工作大局，把“案结事了”作为审判工作的出发点和落脚点，通过强化法官调查取证和诉讼指导以及裁判文书的说理性，发挥法院审判职能作用，在事实清楚的基础上，促进当事人服判息诉。     

Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation

What role do litigation and trial court decisions play in shaping policy? This article explores that question by examining recent litigation against tobacco manufacturers filed by state attorneys general, plaintiff lawyers in class actions, lawyers for cities, unions, health plans, individual smokers, and others. I suggest how this litigation contributed to agenda setting, new ways of defining the problem, of tobacco and the policy alternatives, political mobilization, new legal norms, and new political and legal resources for opponents of tobacco. Addressing theoretical debates about the power of the courts to effect change, I distinguish between causal and constitutive arguments and suggest how both can be incorporated in social analysis.     

Law's Allure in American Politics and Policy: What It Is,What It Is Not,and What It Might Yet Be

Responding to a set of review essays, the author of Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics ( Silverstein 2009 ) argues that politicians and policy entrepreneurs fail to calculate the risks of juridification—the judicialization of policy combined with the legalization of politics itself—which have expanded and accelerated in the United States in recent decades. Paradigmatic case studies (on subjects including poverty, electoral districting, automated budgeting, war powers, abortion laws, and the regulation of tobacco as well as the environment) illustrate the risks of various patterns of juridification and construct an agenda for future research.     

Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41