论修复性司法

与传统刑事司法相比,修复性司法在满足各方当事人需要、吸引社会公众参与、预防和减少犯罪、降低成本、提高成效等方面具有优势,但也有过度依赖当事人、适合处理的案件有限、社会控制的不当扩大和对弱势群体及当事人权利保护不力等局限。修复性司法在国家在刑事司法中的地位、刑事司法的功能、对正义的理解和犯罪解决机制多元化等方面对我们有重要启示。改革我国刑事司法,应跨越单纯改革刑事诉讼程序的狭隘思路,对刑事司法机制进行重塑,逐步建立统一协调、良性互动、功能互补、程序衔接、彼此支持的双轨制,以更好地解决犯罪问题。     

Remedial Cost Allocation Cash Out Valuation under Uncertainty

At multiparty hazardous waste sites, it is often advantageous to all parties when one or more of the parties settle their liabilities before the remediation is completed, often called a “cash out.” Commonly used methods for developing settlement values may, however, create substantial differences between the costs that would have been allocated to the various parties if they stayed in the process until final costs were known and the actual payments made in a cash-out settlement. Evaluation of the cost uncertainty structure can illuminate this issue and suggest alternative settlement structures that may reduce the disparities and provide improved bases for cash out settlements.     

The Design of International Agreements

States entering into international agreements have at theirdisposal several tools to enhance the strength and credibilityof their commitments, including the ability to make the agreementa formal treaty rather than soft law, provide for mandatorydispute resolution procedures, and establish monitoring mechanisms.Each of these strategies – referred to as ‘designelements’ – increases the costs associated withthe violation of an agreement and, therefore, the probabilityof compliance. Yet even a passing familiarity with internationalagreements makes it clear that states routinely fail to includethese design elements in their agreements. This article explainswhy rational states sometimes prefer to draft their agreementsin such a way as to make them less credible and, therefore,more easily violated. In contrast to domestic law, where contractualviolations are sanctioned through zero-sum payments from thebreaching party to the breached-against party, sanctions forviolations of international agreements are not zero-sum. Tothe extent that sanctions exist, they almost always representa net loss to the parties. For example, a reputational lossfelt by the violating party yields little or no offsetting benefitto its counter-party. When entering into an agreement, then,the parties take into account the possibility of a violationand recognize that if it takes place, the net loss to the partieswill be larger if credibility-enhancing measures are in place.In other words, the design elements offer a benefit in the formof greater compliance, but do so by increasing the cost to theparties in the event of a violation. When deciding which designelements to include, the parties must then balance the benefitsof increased compliance against the costs triggered in the eventof a violation.     

Hospital collective bargaining: structure and process.

The increasing influence of third parties on collective bargaining has continued to interest labor relations practitioners. The authors discusses the role of third-party payers and state regulatory agencies in labor-management negotiations at voluntary hospitals. Highlighted is the bargaining strategy adopted by negotiators when collective bargaining operates under a prospective rate-setting system. Also presented are the economic variables by which the payers influence hospital-union relationships and their effect on the outcomes of bargaining. The author describes the political context of health-care bargaining and the growing significance of cost control on hospital negotiations. He concludes that third-party payers cause health-care bargaining to change from a bilateral structure to a multilateral dimension.     

Policing By Command: Enhancing Law Enforcement Capacity Through Coercion

This article addresses the numerous ways command or coercion is used by the state to enhance law enforcement, ways that involve creative interactions with both the targets of law enforcement and third parties. Coercive measures encompass both mandatory reporting and mandatory action. Examples are given and the benefits of using coercion in such circumstances discussed. However, coercion may also have unintended consequences and impose unreasonable costs. With these effects in mind, the authors suggest a set of guidelines for evaluating the appropriateness of coercive measures.     

Does all-payer rate setting work? The case of the New York Prospective Hospital Reimbursement Methodology

By 1983, four states had received waivers from the Health Care Financing Administration and adopted experimental reimbursement programs covering all third-party payers. In general, these programs were designed to moderate cost growth as well as to promote a number of broader distributive objectives. Among the concerns for equity were financing uncompensated care and spreading the costs across all payers, reducing the differential between hospital charges and costs, and rejuvenating fiscally distressed hospitals. These diverse goals represent a fundamental shift in the role of state rate setting; as a result, broader outcome measures are required to determine their overall impact. The New York Prospective Hospital Reimbursement Methodology (NYPHRM) is evaluated in this broader context. The NYPHRM successfully channeled revenues to fiscally blighted hospitals, increasing the volume of care to the uninsured while maintaining cost growth at national levels. According to this broader set of outcome measures, the NYPHRM would be viewed as a policy success.     

U.S. Supreme Court Affirms Potentially Responsible Parties' Right of Action for Cost Recovery

In the wake of the Supreme Court's decision in Aviall—that potentially responsible parties (PRPs) are not permitted to seek contribution from other PRPs under CERCLA unless they have been sued or otherwise settled their CERCLA liability—PRPs and the courts have struggled to identify a remedy for those that voluntarily undertake cleanup of contaminated sites. The Atlantic Research decision resolves a conflict among the circuits and clarifies that PRPs voluntarily incurring cleanup costs pursuant to CERCLA, can maintain an action for cost recovery against other PRPs. The authors discuss the current legal landscape regarding actions for cost recovery as presented in Atlantic Research.     

The Proprietary Foundations of Corporate Law

Recent work in both the theory of the firm and of corporatelaw has called into question the appropriateness of analysingcorporate law as ‘merely’ a set of standard formcontracts. This article develops these ideas by focusing onproperty law's role in underpinning corporate enterprise. Rightsto control assets are a significant mechanism of governancein the firm. However, their use in this way predicates somearrangement for stipulating which parties will have controlunder which circumstances. It is argued that ‘propertyrules’—a category whose scope is determined functionally—protectthe entitlements of parties to such sharing arrangements againsteach other's opportunistic attempts to grant conflicting entitlementsto third parties. At the same time, the legal system uses arange of strategies to minimize the costs such protection imposeson third parties. The choice of strategy significantly affectsco-owners’ freedom to customize their control-sharingarrangements. This theory is applied to give an account of the‘proprietary foundations’ of corporate law, whichhas significant implications for the way in which the subject'sfunctions are understood and evaluated.     

Private antitrust enforcement and the role of harmed parties in public enforcement

It is commonly believed that the possibility to sue privately for antitrust damages increases the probability that anticompetitive actions are prosecuted at the cost of an increased probability that procompetitive actions are prosecuted. We extend the analysis by taking into account that private parties often submit evidence during public investigation. Such parties consider private suit as a partial substitute for public prosecution. The trial option might induce these parties to be less willing to contribute evidence to public cases. Private trials crowd out public prosecution. In effect, the probability of prosecution of anticompetitive actions might decrease, while the earlier result that the probability of prosecuted actions being prosecuted is confirmed. In general, while the attractiveness of trials weakly decreases by considering a reporting possibility, they can remain an enforcement efficacy increasing institution.     

Administrative and policy issues in reimbursement for nursing home capital investment.

The way in which states reimburse for nursing home capital costs can create incentives for nursing home owners to use the home primarily as a vehicle for real estate speculation, with potentially adverse consequences for patient care. In order to help promote and control the stability, adequacy, and quality of capital investment in long-term care, an increasing number of states are using a fair-rental approach for calculating capital reimbursement. In this article we compare the fair-rental approach with traditional cost-based capital reimbursement in terms of administration and policy. We discuss issues of concern to the state (cost and reimbursement design options) and the investor (after-tax cash flows, rate of return, etc.). Our analysis suggests that fair-rental systems may be superior to traditional cost-based reimbursement in promoting and controlling industry stability, while at the same time providing an adequate return to investors, without incurring long-term increases in the costs of administering programs.     

Use and Evolution of the Claims-Made Policy Form in Environmental Insurance: Selected Issues

Environmental risks have two basic components: the policyholder's obligation to clean up contaminated property and the policyholder's potential liability to third parties, including the government, resulting from environmental damage. The environmental risks for which policyholders seek coverage include environmental cleanup costs, third-party bodily injury claims, third-party property damage or devaluation claims, fines/penalties for noncompliance, or loss of market share due to lack of environmental stewardship. To be certain that all aspects of potential environmental liability are covered, an expert insurance consultant or broker should be retained to plan the program, analyze policy language and execute the purchase in the most cost effective way.     

Politics and economics of hospital cost containment

Voluntary and regulatory efforts toward hospital cost-containment have accelerated with rapid increases in those costs and under pressures of national health insurance. Possible causes of hospital cost inflation are examined in the context of market analysis and with reference to the nature of hospitals as institutions facing special combinations of economic and political conditions and pressures. Some details of voluntary experiments and state regulatory efforts are examined in order to assess the elements of experience to date and their relationships to causes of hospital cost inflation. Federal proposals for a regulatory cap on costs are also discussed along with a view of how such proposals are related to probable causes of hospital cost inflation and of the relevance of other experience.     

How Many Seats in Congress Is Control of Redistricting Worth?

How large a benefit is partisan control of the redistricting process? Do legal constraints on redistricting—such as the preclearance requirement of the Voting Rights Act—alter this benefit? Are institutions designed to reduce the benefit to partisan control—such as redistricting commissions—effective? To measure the effects of partisan districting on the electoral fortunes of the parties, we collect data on the partisan composition of state government, House election outcomes, and moderating institutions over an 80-year period. Our results suggest that over time, both parties have benefited from unified control, with the effects largest in states where voters were evenly divided among the parties and smallest in states where the controlling party had a large advantage in the electorate. The effects have changed over time, with both parties having equally benefited from control during the middle of the 20th century, the benefit largely disappearing in the late part of the century, and the Republican Party seeing a moderate advantage from control in the current century. The benefits of partisan control were not diminished in states with redistricting commissions. The preclearance requirement appears to have hurt the Democratic Party except when its vote share was very low. The aggregate effects of partisan redistricting are moderate in magnitude—in the modern period, this effect has typically been less than 10 House seats, with the last election where control of the House would have flipped in expectation occurring in 1954.     

An Economic Analysis of State and Individual Responsibility Under International Law

The international law of state responsibility determines whenstates are liable for international law violations. States aregenerally liable when they have control over the actions ofwrongdoers; thus, the actions of state officials can implicatestate responsibility whereas the acts of private citizens usuallydo not. We argue that the rules of state responsibility havean economic logic similar to that of vicarious liability indomestic law: the law in both cases provides third parties withincentives to control the behavior of wrongdoers whom they canmonitor and influence. We also discuss international legal remediesand individual liability under international criminal law.     

The cost benefits of providing community-based correctional services: An evaluation of a statewide parole program in California

This was a cost-benefit study of a statewide program involving multiple community-based services for parolees in California. Program effectiveness was assessed by comparing program costs to incarceration costs avoided due to decreases in recidivism. During the first year following parole release, program participants on average stayed out of prison longer than the comparison population. Participants who completed any of the community-based services stayed out of prison substantially longer. The reductions in re-incarceration yielded a net saving of $21 million in incarceration costs over the study period, after the costs of the program and parole supervision were subtracted, or a 47 percent net return on each program dollar invested. This study did not include potential cost savings to other parties in the justice system. These findings suggest future investments in community-based correctional services might produce substantial financial benefits. A fuller apprehension of the potential benefits would benefit from continuing evaluations, including studies employing a true experimental design.     

Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Noneconomic Damages Differently?

How do courts award noneconomic damages? Does it matter if the state is the defendant? This article addresses these questions in the context of medical malpractice appeals to the Spanish Supreme Court. Moreover, this study provides the first empirical analysis of the quantification of noneconomic damages in medical malpractice cases in administrative courts, where the state is the defendant, and in civil courts. This separation of jurisdictions is a common feature in civil law tradition countries. Yet, critics of this separation in general, and specialized courts in particular, argue that parties might be subject to different treatments and that similar cases might reach different outcomes, namely in terms of the quantification of damages. A consistent result of this paper is that no significant differences between noneconomic damages in civil and administrative appeals were found. The separation of jurisdictions does not necessarily imply that courts reach different outcomes, even when the state is the defendant. Citizens should not refrain from bringing their claims forward against the state, a more powerful party. In the current era of increasing juridification and judicialization of modern life (Ginsburg 2009; Hirschl 2006; Hirschl 2011), it is crucial for society that citizens and other parties litigating with the state are not disadvantageously treated.     

Criteria for Allocation of Responsibility under State Law

Numerous state statutes provide guidance for allocating responsibility and response costs among potentially responsible parties at environmentally contaminated sites. Twenty-eight states explicitly or implicitly address joint and several liability; thirty states address allocation criteria; and two states identify how orphan share costs are shared. Of the thirty states that address allocation criteria in their statutes, twenty-four specify one or more criteria that may be applied to avoid joint and several liability, and twenty-nine permit the allocation of responsibility using unspecified equitable factors. The state allocation criteria tabulated and discussed in this article can be used by counsel and their technical consultants and experts to assess which, if any, state-specific criteria are most applicable to a particular site, given the technical, historical, financial, and regulatory information that may be available for that site.     

Let's Talk about Climate Change: Disclosure Is Coming

In this article, I review the newly released draft ASTM International standard on climate change disclosure. Many parties, from investors to state agencies, are calling for a consistent, comprehensive approach to disclosure of material financial impacts attributed to climate change. Disclosures range from costs associated with compliance to new laws to more general risk management strategies adopted by corporations. This article summarizes some of the key features of the draft standard and encourages participation in the development process.     

Sequential trials and the English rule

The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. The combination of these two elements has received relatively little attention in the law and economics literature. The prior literature has only compared unitary litigation (e.g. liability and damage issues are litigated, after which the court decides on both issues) under the American rule with sequential litigation (e.g. the parties first litigate the liability issue after which the court makes a decision, and then if still necessary the parties litigate the damages issue) under the American rule. In this article, I examine the influence of sequential litigation when the loser at trial pays all the litigation costs and compare the results with (a) the situation in which litigation is unitary and the loser pays all the litigation costs and (b) the situation in which litigation is sequential and each party bears her own costs. I focus on the incentive to sue, the incentive to settle (or to litigate) and on the settlement amount. Some interesting differences with the previous literature are discussed in detail.     

The Costs and Benefits of Transferring Technology Infrastructures Underlying Complex Standards: The Case of IPv6

Industry stakeholders and Internet experts generally agree that networks using Internet Protocol version 6 (IPv6), an Internet communications standard which is being promoted strongly by many parties, would be technically superior to today’s networks, which are largely based on IPv4. The improvements designed for IPv6 could provide numerous benefits to Internet users, network administrators, and applications developers; among these potential benefits are cost reductions due to improved security and increased efficiency, improvements to existing products and services, and innovations leading to new products and services. However, there is wide disagreement about the characteristics and timing of benefits associated with IPv6, and the costs associated with the transition could be substantial. In this paper, we will discuss the likely costs of a transition to IPv6 for the major stakeholders and the potential benefits. Subsequently, we will introduce the cost impact of an accelerated adoption case and discuss potential ways in which the government could become involved in the process. This paper is based on a broader study funded by the National Telecommunications and Information Administration (NTIA) and National Institute of Standards and Technology (NIST). We wish to thank Greg Tassey, Fred Lee, Tim Sloan, B. Keith Fulton, John Streck, and Baran Erkel for comments and suggestions on earlier versions of this paper.