Optimal antitrust enforcement: information cost and deterrent effect

This study analyzes the optimal antitrust enforcement rule and, in doing so, presents a model that illuminates two important issues. First, it compares the per se legal and illegal judicial standards to the rule of reason judicial standard in terms of information costs and general social welfare. Second, it seeks to derive the optimal judicial standard that minimizes the problems of under- and over-deterrence. These two issues are closely related because the benefit of additional information can only be measured by its deterrent effects. In this respect, this work synthesizes economic models from decision theory and the public enforcement of law. Lastly, in addition to discussing the optimal information level, we derive the optimal permissiveness of the judicial standard, the optimal burden of proof, and the optimal punishment level. We also analyze how these policy variables are interrelated.     

Pretrial Publicity and Civil Cases: A Two-Way Street?

Published pretrial publicity (PTP) research has been conducted almost exclusively with criminal cases and has focused on PTP that is detrimental to the defense. The current research examined the effects of PTP in a civil case to determine if PTP can have a biasing effect against either the defendant or the plaintiff in civil litigation. In Experiment 1, participants exposed to PTP biased against the defendant were more likely to reach a liable verdict than participants who read a control article or PTP biased against the plaintiff. Experiment 2 demonstrated that a judicial admonition did not reduce the biasing effect of PTP about a civil defendant. However, participants given the admonition both before and after the trial evidence viewed the defendant as less culpable than participants given the admonition after the trial only or not at all. The implications for the legal system are discussed.     

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis‐framed judicial admonition. I conclude that constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy.     

Enhancing Rescue in Chapter 11: Lessons from Reform Efforts in the United Kingdom

This is a dynamic time for insolvency law. Many jurisdictions have made or are considering reforms to their insolvency regimes. The United Kingdom has proposed a new standalone restructuring mechanism that incorporates many attributes of Chapter 11, including a cross-class cram down and the absolute priority rule. A distinctive feature of the UK proposal is the infusion of judicial discretion permitting courts to deviate from the absolute priority rule. This discretion is not permitted in the United States. This judicial discretion addresses a key problem with the application of the absolute priority rule in the United States—it may serve as an impediment to reorganization. This impediment is exacerbated by the recent U.S. Supreme Court decision, Czyzewski v. Jevic Holding Corp., which impacts the effective use of Chapter 11 rescue tools. This article explores the absolute priority rule, the problems associated with it, and the effect of Jevic in the United States. Drawing on the UK reform proposal, I argue that the United States should implement reforms that infuse judicial discretion into the application of the absolute priority rule. Doing so will facilitate the underlying policy goal of rescuing the company in Chapter 11 and also promote a broader policy goal of rescuing the business.     

Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.     

Out on a Limb: Appointing a Parenting Coordinator with Decision‐Making Authority in the Absence of a Statute or Rule

This Article addresses the issue of whether a court may appoint a Parenting Coordinator (PC) with decision‐making authority in the absence of a statute or court rule. The Article identifies possible sources of authority for the appointment of a PC with decision‐making authority in a state with no authorizing statute or court rule. It also provides a paradigm for constructing an appointment that allows for the benefits of Parenting Coordination but does not delegate decision‐making authority to an extent that it would constitute an impermissible delegation of judicial authority.

Key Points for the Family Court Community:
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court may find some authority allowing the appointment in (1) its equitable authority over child custody and visitation, (2) its authority to enforce its own orders, or (3) its authority to appoint other extrajudicial assistants such as a special master or mediator.
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court must craft an appointment that delegates enough decision‐making authority to the PC for parenting coordination to be effective yet, at the same time, not so much decision‐making authority as to render the appointment an impermissible delegation of a judicial function, specifically:
  • The PC's role should be limited to assisting the parties in implementing custody and visitation terms already decreed by the trial court.
  • A PC should be appointed only if the parties to the divorce consent to the appointment or if the trial court makes a finding that the case is a high‐conflict case.
  • The parties must have the opportunity for the trial court to meaningfully review any decision of the PC so that the trial court retains ultimate decision‐making authority.

     

论司法判决的不确定性

一般认为,司法判决是确定的,每个案件都存在着“唯一正确的答案”,这是一个常识性的错误。事实上,在判决的形成过程中,有多种不确定性因素在发挥着作用,因而,判决往往是不确定的。判决的不确定性主要来源于以下四个方面：即法律适用的不确定性、事实认定的不确定性,司法人员个性的不确定性和其他社会因素的不确定性。     

The “Production” of Corruption in China's Courts: Judicial Politics and Decision Making in a One‐Party State

Despite its rampant presence, judicial corruption in China has often been regarded as the idiosyncratically deviant behavior of a few black sheep eluding prescribed judicial conduct. This entrenched assumption has both discouraged in‐depth investigation of the phenomenon of judicial corruption and inhibited proper understanding of the functioning of China's courts. This article, based on an empirically grounded examination of the processing of court rulings tainted by corruption, showed that judicial corruption in China is an institutionalized activity systemically inherent in the particular decision‐making mechanism guided by the Chinese Communist Party's instrumental rule‐by‐law ideal. In investigating what has contributed to the institutionalization of judicial corruption, the interplay between law and party politics in China's courts was also examined. The findings, therefore, also shed light on behind‐the‐courtroom judicial activities and on the enduring perplexity of the gap between the law in the book and the law in action.     

The Argument of Rightness as an Element of the Discretionary Power of the Administrative Judge

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity (understood as rightness) has one more purpose; namely, it allows for the process of decision-making—and not just for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity (rightness) stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness.

     

Medicare programs: changes to the end-stage renal disease prospective payment system transition budget-neutrality adjustment. Interim final rule with comment period

This interim final rule with comment will revise the end-stage renal disease (ESRD) transition budget-neutrality adjustment finalized in the CY 2011 ESRD Prospective Payment System (PPS) final rule for renal dialysis services provided on April 1, 2011 through December 31, 2011. We are revising the transition budget-neutrality adjustment to reflect the actual election decision to receive payment under the ESRD PPS for renal dialysis services furnished on or after January 1, 2011 made by ESRD facilities, rather than projected elections using the same methodology as described in the ESRD PPS proposed and final rules. This results in a zero percent adjustment for renal dialysis services furnished April 1, 2011 through December 31, 2011.     

The effects of judicial admonitions on hearsay evidence

Using a simulated civil case, this experiment investigated whether mock jurors: (a) are able to disregard hearsay evidence when admonished to do so, (b) experience psychological reactance and "backfire effects" in proportion to the strength of judicial admonition instructing them to disregard hearsay evidence, and (c) are able to recognize and disregard hearsay evidence without judicial instructions. Results indicate that jurors were unable to disregard inadmissible hearsay testimony in some legal decisions regardless of whether there were judicial instructions to do so. Jurors exhibited backfire effects paying more attention to inadmissible hearsay evidence when they were strongly instructed to disregard it. More specifically, juror backfire effects were evident in both their confidence in their liability verdicts and in their punitive damage awards. The legal and policy implications of these findings are discussed.     

Constitutional judicial review and political insurance

Considering constitutional judicial review of policy, the power of courts to annul legislation, as a political insurance mechanism to protect against losses from adverse election outcomes, the paper analyzes three questions: First, under what circumstances a political ruler, who wins an election and the right to propose measures of policy, subjects those measures to the checking powers of an independent judiciary. Second, the net expected gains of a political ruler from granting binary choice to the reviewing judiciary rather than open choice. Third, the equilibrium degree of policy review power granted to the judiciary. Differences in the policy preferences of competing politicians, the judiciary and the status quo, the probability of winning an election and the probability that the judiciary confirms legislation passed by the incumbent emerge as the main determinants of judicial review and its political independence.     

“辩诉交易”纵横论

诉辩交易产生于上世纪二三十年代的美国。采取辩诉交易可以使被害人因犯罪行为而遭受的损失早日得到补偿,也有利于修复被犯罪行为破坏的和谐关系。当然辩诉交易也有局限性,有时不利于查明案件事实真相,也有可能损害被害人的利益,也有可能有悖司法公正。尽管我国目前不存在引进美国式辩诉交易的环境,但这并非是说我国不能借鉴于辩诉交易,扬长避短一样可以为司法实践服务。     

Trust Parties’ Uniquely Easy Access to Rescission: Analysis,Critique and Reform

Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings‐Bass to rescission in equity. The article argues that this advantage is normatively unjustified, and recommends a uniform legal framework to govern the avoidance of voluntary dispositions resulting from mistakes or inadequate decision‐making, whether or not a trust was involved. Under this framework, dispositions resulting from laypersons’ mistakes and inadequate decision‐making should be avoided, subject to appropriate defences, whenever that causative nexus is present, while dispositions resulting from professionals’ mistakes and inadequate decision‐making should only be avoided where the mistake or deliberative flaw was so serious as to render the transferee's retention of property transferred unjust.     

简议范仲淹的司法改革思想

文章集中论述了北宋改革家范仲淹在庆历新政中推行司法改革 ,提出加强司法监督 ,强化刑部职能 ,重命令 ,准律文 ,慎选司法官吏等重大指施 ,充分地反映了范仲淹的司法改革思想     

The Uncertainties in the Rule in <Emphasis Type="Italic">Re Hasting</Emphasis>-<Emphasis Type="Italic">Bass</Emphasis>

Writing extra-judicially, Sir Robert Walker once commented that ‘the decision in Re Hastings-Bass must be seen in its judicial context. It cannot be regarded as giving a “carte blanche” excuse to every body of trustees who have made a mistake. The law on the issue now stands in a state of some uncertainty’ (Walker, The limits of the principle in Re Hastings-Bass, P.C.B 226, 2002). There is no doubt in the minds of most commentators and, indeed those persons seeking to invoke the rule in Re Hastings-Bass on behalf of their clients, that much clarification is needed as to the proper scope of the rule. Recent judicial trends suggest that, not only is the rule in Hastings-Bass being applied at such an unprecedented rate with very little scrutiny from a court beyond that of the High Court, it is also showing signs of plaguing the wider fiduciary community. As the opportunity for the Court of Appeal, and indeed the Supreme Court, to exercise some judicial scrutiny of the rule may not be that far away, this article highlights some of the present uncertainties with the rule in Re Hastings-Bass.     

珍视正当程序,拒绝辩诉交易

辩诉交易是特定条件之下才能正常运行并且倍受争议的一项制度 ,多数国家都对它采取了极其谨慎的态度 ,它不符合中国的法律精神和司法实际 ,也不是解决刑讯逼供、超期羁押等问题的适当手段 ,如果引入 ,会对侦查、起诉和审判制度形成强烈冲击 ,破坏正在逐步完善的程序法制 ,加剧司法腐败。因此 ,中国法不应当、也没有必要采用辩诉交易制度。     

Political Bargaining and the Timing of Congressional Appropriations

Although Congress passes spending bills every year, there is great variation in the amount of time it takes. Drawing from rational models of bargaining, we identify factors that systematically affect the duration of legislative bargaining in the appropriations process. Analysis of spending bills for fiscal years 1977 to 2009 shows that delays are shorter when the ideological distance between pairs of key players decreases and distributive content is higher, but they are longer following an election. We find that congressional parties matter but that intraparty conflict matters as well, which suggests that Appropriations Committees retain significant autonomy in Congress.     

Medicare program; uniform relative value guide for anesthesia services furnished by physicians--HCFA. Final rule

We are establishing a relative value guide for use in all carrier localities in making payment for anesthesia services furnished by physicians under Medicare Part B. This final rule implements section 4048(b) of the Omnibus Budget Reconciliation Act of 1987. The relative value guide is designed to ensure that payments using the guide do not exceed the amount that would have been paid absent the guide. This final rule also implements section 6106 of the Omnibus Budget Reconciliation Act of 1989. Section 6106 revises the method under which time units are determined for anesthesia services furnished by anesthesiologists or certified nurse anesthetists on or after April 1, 1990.     

Abolition of plea bargaining in the coast guard

In the administration of criminal justice, the abolition or restriction of plea bargaining has raised many issues. Of primary concern is the impact on court systems and case dispositions. This research note looks at the Coast Guard military justice system and its 1975 decision to abolish pretrial agreements, effectively eliminating plea bargaining in that system. Studying criminal cases from 1973 to 1978, we determine if that intervention in a time series exhibits any potency. Specifically, what difference did the abolition of plea bargaining make? We find that the abolition of plea bargaining did not make much of a difference to the Coast Guard military justice system, similar to the conclusions drawn from studies of civilian courts.