More Regulation of Industry-Supported Biomedical Research: Are We Asking the Right Questions?

Industry-sponsored biomedical research is under the microscope. In an attempt to achieve just results in extraordinary cases, critics are suggesting regulations that would pervert the U.S. clinical trial process. However, the arguments made to justify such regulation are weak at best. All the proposals to regulate industry sponsorship of clinical trials that we surveyed (over a hundred articles and ten books, most written in the past decade) suffer from some form of fallacious reasoning. In the interest of advocating sound policy, this article points out some of the most common reasoning errors found in the literature on financial conflicts of interest in clinical trials.     

论证明过程中的设证推理--以南京彭宇案为例

设证推理相对于演绎推理和归纳推理而言是最具有创造性的推理，设证推理能产生新的思想，这在事实发现和法律发现过程中具有重要的意义。同时设证推理作为一种推理方法也在法院的事实认定活动中被运用，具体在判决书的说理部分有所反映。但是设证推理由于裁判者的错误判断和其本身具有的局限性容易造成不适当的使用，所以在进行事实认定活动时需要对设证推理的运用设置范围和规则，以求达到更好地追求事实真相的目的。     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

法律推理中的独特思维倾向及其可能的误区

法律推理是一种特殊的推理。它既具有推理的一般特征,也有自身的独特性。法律推理的独特性主要表现在推理主体的思维方式上。在法律推理中,人们根深蒂固地具有三种思维倾向:规则取向、概念取向与自治取向。这些思维倾向是在长期的法律推理活动中形成的,因此在法官、律师、学者等专业或经常从事法律推理的主体身上最为凸显。正因如此,它们有时也被称为法律人的思维方式或法律(人)思维。一般情况下,这些思维倾向使得相关主体更有可能得出正确的裁判结论,有助于说明判决的合法性来源,并在一定程度上增进了限权、平等、法治等对于现代社会来说极为重要的政治道德理想。但如果在一些相关理论问题上缺乏正确认识,它们也可能会给法律事业造成危害。为了推动法律领域内的知识增长与实践进步,我们要对这些思维倾向有充分、自觉的认识,一方面要承认它们的存在并给予应有的尊重;另一方面也要注意防范可能的风险。     

A Modest Notion of Coherence in Legal Reasoning. A Model for the European Court of Justice

Abstract. The aim of this article is to propose a theoretical theme to explain coherence in legal reasoning. The main argument that this paper wants to put forward is that theories of coherence in the legal system should be differentiated from theories of coherence in legal reasoning. These focus on arguments, and on how the given arguments are connected. In particular, the notion of coherence in legal reasoning proposed here is a modest one. The article applies this theme to the case‐law of the European Court of Justice in environmental matters. This provides an example of how to deal with conflicts between incommensurable goods, and how to promote coherence by justifying decisions.

相似文献   

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation‐of‐powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.     

The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases

In this study, we assess the impact of attitudinal and jurisprudential factors on the Supreme Court's resolution of intercircuit conflicts. In doing so, we depart from earlier efforts to assess the impact of legal factors that conceptualize law as an external constraint. Instead, we view jurisprudential considerations in terms of the justices' efforts to adopt the most legally persuasive position in light of accepted methods of legal reasoning. Our analyses reveal that the justices are (1) more likely to follow the reasoning process adopted by the majority of circuits involved in the conflict, (2) less likely to adopt the conflict position marred by contrary dissents and concurrences in the circuit court opinions, and (3) more likely to adopt the conflict position endorsed by prestigious circuit court judges. Our findings suggest that jurisprudential considerations, as well as attitudinal concerns, affect the justices' decisionmaking processes in a substantial minority of cases.     

裁判形成的思维过程

法律裁判并非仅仅通过推理即可形成。法律推理其实是为判决结论提供正当理由的过程,可是推理本身是无法为自身的"前提"提供出处的。这就需要将裁判思维的视野扩大到推理"前提"的获得以及获得之前的心理活动上。如果将前提的获得称为发现,将结论是否合理的证明过程称为证成,那么裁判思维就可以被分成"发现"与"证成"两个脉络。     

Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases

In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce.     

论法律推理的合法性要求

合法性是对司法审判活动的基本要求,在法律推理中同样如此。法律形式主义的合法性理论遭到了法律现实主义的否定,这两种理论都是以简化的法律推理模式为出发点的。本文指出,法律推理的合法性首先要求法律推理必须使用法律上的理由;其次还取决于当事人及其律师的合法参与以及社会对司法判决的一般性接受。     

On the political economy of the informal sector and income redistribution

In this paper we analyze a general equilibrium model in which agents choose to be employed in formal or in the informal sector. The formal sector is taxed to provide income subsidies and the level of redistribution is determined endogenously through majority voting. The model is simulated to produce qualitative results and to illustrate the differences between economies with different distributional features. We show that a distortion in the democratic rule in favor of the rich reduces transfers while the size of the informal sector may remain at high levels. Despite a greater demand for redistribution in societies where the majority has few resources (skills), we find that political systems which work in favor of a rich minority will produce little redistribution. Our results call for pro-poor measures such as free training and education programs that should be offered to those who cannot afford it.     

摹仿逝者少量字签名的鉴定方法与价值特征分析

通过分析一起摹仿逝者签名笔迹的案件鉴定,初步探讨摹仿少量字签名的基本特征,在此基础上归纳出伪造少量字签名笔迹特征的基本规律,从签名笔迹的概貌特征和细节特征之中运用辩证的观点做出准确的结论。     

论我国刑法分则规范的完善--以总分则之关系的合理定位为切入点

以刑法总则与分则之关系的合理定位为切入点,我们不难发现:刑法分则的不少条文并不符合刑法总则"但书"的规定;刑法分则的不少条文不符合刑法总则第14条、第15条的规定;刑法分则的不少条文不符合刑法总则关于数罪并罚的规定.另外,刑法分则将预备行为、教唆行为、帮助行为纳入到分则规范之中;具体犯罪的法定刑以犯罪既遂为模式;刑法分则规定特别自首制度、累犯制度,所有这些都不符合刑法总则与分则之关系的合理定位.相应地,这些分则条文应予完善.     

RULE OF LAW IN CHINA-- LEGISLATION REASONING AND ENFORCEMENT OF ANTI-MONOPOLY LAW IN CHINA AND THE WEST

It is a long debate over whether rule of law is reliable in China, when some Chinese regulations are considered to be decided for political interests rather than the law itself. Furthermore, Chinese court decisions are often criticized for not according with statutes, even though the latter are properly written. The author examines these issues by comparing the legislation reasoning and enforcement of competition law in China, the European Union and the United States, which will not lead to endorsement of or objection to the view that rule of law is properly enforced in China, but it shall be an inevitable responsibility for the Chinese judiciary to demonstrate efforts it has taken.     

On input-output type output multipliers from incomplete information

Incomplete knowledge of data usually hinders the establishment of detailed input-output tables. It is for this reason that up-dating procedures (RAS) as well as short-cut methods have been developed. In this paper the short-cut output multiplier formula by Drake (1976) is compared with the output multiplier involved in the RAS procedures. It will turn out that both these output multiplier estimates are two special cases of a more general class of estimating procedures. It is demonstrated by an empirical example how this generalized procedure should be applied in practice. The kind of reasoning underlying this paper can be extended to other problems of input-output analysis as well.     

溯因推理新论——法律论证的视角

溯因推理具有显著的特征：或然性（假设性）、逆向性、非单调性、语用性和创新性.溯因推理研究的新进路在于,其发生了语用学的转向以及语用论证（论辩）的转向.在法律方法（法律适用）和法律逻辑的视域,溯因推理的研究及其运用,长期困固于刑事侦查领域中,对于其在司法判决（审判阶段中）作为一种法律论证方法以解决疑难案件的论证则少有使用.以法律论证为视角,用一例只有被害人陈述为直接证据的强奸案件为例,通过对传统证据链模式的分析,提出印证式证据链模式和排除式证据链模式,建立溯因推理的正向溯因推理模式和反向溯因推理模式,并在案件证据所呈现的情境下建构法律语境,展现溯因推理在具体案件中的法律论证,以期能为我国司法判决实现合理性和正当性,提供一种新的论证模式或方法.     

Influence without Confidence: Upper Chambers and Government Formation

In most parliamentary democracies, governments must maintain the confidence of a single legislative chamber only. But in bicameral parliaments, upper chambers can affect the fortunes of government policy proposals. Recent work shows that parliamentary governments that lack control over the upper house also tend to collapse sooner than those with upper‐house majorities. In this article, we show that coalition builders anticipate the importance of upper‐chamber status (majority or minority) in making their formation decisions. After controlling for a host of “usual suspect” variables concerning the institutional, ideological, and partisan context of coalition building, and examining 15,590 potential governments in 129 bargaining situations, we found that potential coalitions that control upper‐house majorities are significantly more likely to form than are those with upper‐house minorities. Our findings are important for students of bicameralism, government formation, institutions, and, perhaps most significantly, for those who study policymaking in parliamentary democracies.