More than the sum of its parts? Itemizing impairment in civil cases

Purpose. The purpose of the present study is to determine whether making multiple damage awards influenced civil mock jurors' assessments of those damage awards. Specifically, how does making one decision for pain and suffering damage awards versus two decisions (one for mental pain and suffering and physical pain and suffering) versus four decisions (one for loss of enjoyment of life, mental anguish, disfigurement, and physical disability/impairment) influence overall non‐economic damage awards. Methods. One hundred twenty undergraduates from a psychology participant pool read a case vignette that included information regarding four types of injuries that the plaintiff endured: loss of enjoyment of life, mental anguish, disfigurement, and physical disability/impairment. Participants were randomly assigned to render either one award for pain and suffering, two awards (one for physical pain and suffering and one for mental pain and suffering), or four awards (one for each pain and suffering element). Results. Results indicated that participants who rendered four awards provided significantly higher overall non‐economic damage awards than participants who provided one overall award. The variability of damage awards also increased as the number of damage awards increased. Conclusions. Itemizing non‐economic damage awards into distinct injury categories can lead to an increase in overall non‐economic awards. Members of the legal arena should be cautioned against itemizing damages to prevent variability in non‐economic awards.     

The Effects of Limiting Punitive Damage Awards

In response to concerns that jury awards in tort cases are excessive and unpredictable, nearly every state legislature has enacted some version of tort reform that is intended to curb extravagant damage awards. One of the most important and controversial reforms involves capping (or limiting) the maximum punitive damage award. We conducted a jury analogue study to assess the impact of this reform. In particular, we examined the possibility that capping punitive awards would cause jurors to inflate their compensatory awards to satisfy their desires to punish the defendant, particularly in situations where the defendant's conduct was highly reprehensible. Relative to a condition in which punitive damages were unlimited, caps on punitive damages did not result in inflation of compensatory awards. However, jurors who had no option to award punitive damages assessed compensatory damages at a significantly higher level than did jurors who had the opportunity to do so. We discuss the policy implications of these findings.     

Civil Asset Forfeiture Laws and Equitable Sharing Activity by the Police

Research Summary

For several decades, critics have argued that civil forfeiture laws create incentives for law enforcement to increase departmental revenue by “policing for profit.” By using data on federal equitable sharing payments to nearly 600 local law enforcement agencies between 2000 and 2012, we examine the relationship between the characteristics of state forfeiture laws and equitable sharing payments to local agencies. Our results indicate that agencies in states with state laws that are more restrictive or less rewarding to police collect more in federal equitable sharing. This finding supports the critics’ argument that police behavior in regard to forfeiture activities is influenced by the financial rewards and burdens involved.

Policy Implications

Our results reveal that the findings of investigative journalism and case study research, that is, that police forfeiture activities are influenced by financial rewards, may be more generalizable to law enforcement than previously thought. Despite recent state‐level reforms, federal equitable sharing and most state forfeiture laws provide limited due process protections and have minimal accountability or reporting requirements. Concerns about the impact of civil forfeiture practices on perceptions of procedural justice and police legitimacy are discussed, and possible policy reforms are reviewed.     

国际商事仲裁裁决承认和执行中的公共政策问题

在国际商事仲裁裁决的承认和执行中,公共政策是一个极不确定的因素,一国为保护本国当事人的利益,可能会以此为由拒绝承认和执行外国仲裁裁决.国际法协会国际商事仲裁委员会认为,在国际商事仲裁裁决的承认和执行方面,应采纳国际公共政策的概念,以避免因各国对公共政策的理解不同而影响国际商事仲裁裁决在世界范围内的承认和执行.该委员会还认为,一国的国际公共政策包括该国所希望保护的与道德和公正相关的基本原则、该国的强行法规范以及该国应承担的国际义务,并对其具体适用提出了针对性的建议.     

晚近ICSID仲裁庭管辖权裁决的实证考察——兼谈我国首次被申诉案件的管辖权抗辩

近年来，ICSID仲裁庭管辖权裁决出现平稳增加的趋势。管辖权是ICSID仲裁庭得以作出有效裁决的基石，投资者和东道国也往往在进入实体争议之前首先就管辖权问题争锋相对。通过对近十年来ICSID仲裁庭的管辖权裁决进行分析，特别是结合公约内容中相关要件的规定，管辖权裁决的特征和趋势逐渐显露。考察晚近ICSID仲裁庭管辖权裁决，有助于分析ICSID仲裁庭自身的运作机制，积累实践案例经验，对于我国首次作为被申诉方参与ICSID进行管辖权抗辩也具有较强的启示作用。     

Partisan Effects of Legislative Term Limits

Term limits remain a popular policy reform and have generated a great deal of scholarship as a result. Although many predicted that term limits would benefit the Republican party, the literature finds no marked partisan effects, possibly because termed‐out legislators have largely been replaced by copartisans. This article demonstrates that term limits have indeed had partisan effects—just not on electoral outcomes. Term limits have caused a significant reallocation of institutional power from Democrats to Republicans (as measured by contributions from access‐oriented interest groups), in large part because they have removed more senior Democrats than Republicans. The partisan effects of term limits therefore point to the institutional value of seniority.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

外国仲裁裁决论析——基于《纽约公约》及中国实践的视角

《纽约公约》适用的“外国仲裁裁决”包括了在外国作出的裁决和非内国裁决两类。“在外国作出的裁决”是指法律上的仲裁地位于任何外国的裁决,因此,当事人住所地、仲裁机构所在地或仲裁裁决书签字地以及当事人的国籍和裁决的国际性等因素均与判定某项裁决是否属于外国仲裁裁决以及应否适用该公约无关。互惠保留只是将“在外国作出的裁决”进一步限定为在缔约的外国而非任何外国作出的裁决,故互惠保留既无一般意义上的互惠对等含义,也不应作其他扩大解释。缔约国只能将本国境内作出的裁决自主认定为“非内国裁决”。由国际商会仲裁院等外国仲裁机构在中国境内作出的裁决应在中国被认定为该公约项下的“非内国裁决”。     

现行仲裁执行司法监督制度结构的反思与调整——兼论仲裁裁决不予执行制度

仲裁裁决不予执行制度试图实现被申请人的权利救济和国家对仲裁更全面监督的双重目的。但由于这一具有司法监督职能的制度被置于执行阶段,不予执行事由实质上成为一种被申请人针对执行请求的抗辩主张,从而与司法审查监督无关。且由于抗辩一旦成立即具有废除仲裁裁决执行力和既判力的双重后果,导致抗辩主张与实际效果的背离。现行制度的这一结构导致了审判权与执行权(执行裁决权)行使的混同。这一结构性缺陷的主要原因是人们在认识上误认为仲裁裁决当然具有执行力。但在仲裁和执行法理上,执行力专属于国家司法机关,仲裁作为民间裁决要具有可执行性,必须经过司法机关的审查确认。这一过程是审判权的运用,而非执行权的运用。有鉴于此,应当专门设置对仲裁裁决可执行性的审查程序,即由权利人向法院提出对仲裁裁决的确认申请,法院予以审查确认。法院的确认裁决与仲裁裁决共同成为执行根据。该程序是一种特殊的审理程序,兼具诉讼性和非讼性。该程序使国内仲裁裁决的执行与国外及我国港澳台地区仲裁裁决的执行保持了一致,也进一步实现了审执分离,使国家对仲裁执行的监督更为合理。     

民事调解书的检察监督

对民事调解书进行检察监督是2012年民事诉讼法的新规定,也是我国检察机关的新任务。对调解书的监督与对判决、裁定的监督存在多方面的差异,只有充分认知和把握两者的区别,对民事调解书的检察监督才能顺利进行。民事诉讼法第208条中的"调解书",解释上应包括调解笔录、司法确认裁定书,但不包括仲裁调解书。对调解书的监督,应当采用依职权监督的方式。授权检察机关对损害国家利益、社会公共利益的调解书进行监督的规定属于法律中的一般性条款,检察机关正确实施监督的关键在于恰当界定调解书是否损害这两种利益。对国家利益、社会公共利益应当采用目的性扩张的解释方法,调解书违反法律的禁止性规定、严重违背社会公德、损害集体经济组织利益、损害社会弱势群体利益的,也应当视为损害国家利益、社会公共利益。损害案外人利益的虚假诉讼的调解书,也应成为监督的对象。适用民事诉讼法第208条时,还应注意国家利益与社会公共利益在一些情况下难以精确地界定和区分。     

试论国内仲裁司法监督的范围

独立性和一裁终局性体现了仲裁制度的基本精神,仲裁裁决由于其准司法特点,也必然受制于国家司法权力的监督和制约。我国《仲裁法》所建构的对国内仲裁进行实体性和程序性全面司法监督的体制,在现实中存在监督不当的可能,更重要的是与仲裁制度本质以及与民事诉讼机制平衡关系等存在抵触。从制度构建的角度来讲,应改而确立司法对仲裁的程序性监督机制,保证司法机制和仲裁机制在民商事纠纷处理机制上的平衡关系。     

Employment law

This article attempts to trace the history of the award of ‘vindicatory’ damages under Commonwealth Caribbean constitutions, to determine, first, why the courts were hesitant to grant damages for breach of constitutional rights; second, the circumstances and the principles that informed the decision of the courts to accept that an award of damages was an acceptable form of redress under Commonwealth Caribbean constitutions; third, the manner in which these principles have evolved over the past decades in Commonwealth Caribbean human rights jurisprudence; and fourth, examine the principles that underlie the award of the recently‐coined, ‘vindicatory damages’ for infringements of the Constitution.     

Explaining “Pain and Suffering” Awards: The Role of Injury Characteristics and Fault Attributions

The present research explored factors thought to affect compensatory awards for non-economic ham (pain and suffering) in personal injury cases. Experiment 1 showed that the nature and severity of the plaintiffs injury had a strong effect on perceptions of the extent of harm suffered and on award amounts. The parties' relatively active or passive roles in causing the injury affected assessments of their degree of fault, but perceived fault had little influence on awards. Experiment 2 replicated with more varied cases the strong impact of injury severity on harm perception and on awards for pain and suffering. In both studies, the disability and the mental suffering associated with injuries were stronger predictors of awards than were pain and disfigurement.     

ADOLESCENT VICTIMIZATION AND INCOME DEFICITS IN ADULTHOOD: RETHINKING THE COSTS OF CRIMINAL VIOLENCE FROM A LIFE‐COURSE PERSPECTIVE*

Estimating the financial costs of criminal violence to victims is important for assessing both the impact of crime on individuals and evaluating the feasibility and utility of various crime prevention, crime control, and criminal justice policies. Traditionally, such estimates focus on short‐term costs: costs connected to the victimization event itself and costs incurred during the immediate aftermath. Although the possibility of more long‐term costs is acknowledged, research has yet to articulate how and to what extent criminal violence impacts socioeconomic fortunes. In this article, I propose a life‐course model for estimating the long‐term costs of violent victimization. Using prospective, longitudinal data from a national sample of American adolescents, and retrospective data from a national sample of Canadians, I use this conceptual model to estimate income losses over the life cycle associated with violent victimization. Three significant results are reported. First, income losses from violent victimization are age‐graded, with the greatest costs occurring for victimization experienced in adolescence. Second, criminal violence experienced in adolescence appears to influence later earnings by disrupting processes of educational and occupational attainment. Third, the total costs of criminal violence over the life course for adolescents are considerable in comparison to estimates provided in previous research. The policy implications of these findings are discussed.     

Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards

Two experiments were conducted to study the manner in which civil jurors assess punitive damage awards. Jury-eligible citizens were shown a videotaped summary of an environmental damage lawsuit and told that the defendant had already paid compensatory damages. They were asked to judge liability for punitive damages and, if damages were to be assessed, to assign a dollar award. Three independent variables were manipulated in the case materials: the dollar amounts that were explicitly requested by the plaintiffs in their closing arguments to the jury, the geographical location of the defendant corporation, and the location of the lead plaintiff. Consistent with prior findings of anchor effects on judgments, we found that the plaintiffs requested award values had a dramatic effect on awards: the higher the request, the higher the awards. We also found that local plaintiffs were awarded more than were geographically remote plaintiffs, while the location of the defendant company did not have reliable effects on the awards. The implications of these results for procedures in civil trials and for theories of juror decision making are discussed.     

Beyond innovation: the Small Business Innovation Research program as entrepreneurship policy

Entrepreneurship or new firm formation plays an increasingly important role in knowledge-based economic development. Public policy to encourage new firm formation has not focused on high quality, high potential firms, and the search for entrepreneurship policy with high economic impact is still needed. This research evaluates the efficacy of the US Small Business Innovation Research (SBIR) program from the perspective of promoting high technology entrepreneurship. In particular, we examine whether the local presence of SBIR awards is associated with increased new firm formation rates in the high technology sector. Although the primary objective of SBIR is to facilitate technological commercialization in small businesses, our policy analysis based on spatial multivariate methods suggests that this program may also serve as an effective entrepreneurship policy.     

The return of financial variables in forecasting GDP growth in the G-7

The financial crisis and subsequent sovereign debt crisis together had a profound impact on the current economic environment. This study reexamines the established stylized facts and previous evidence regarding the predictive association between financial variables and real economic activity considering changed economic circumstances. This paper focuses on the predictive ability of the term spread, short-term interest rate and stock returns for real GDP growth in the G-7 countries. We compare the predictive content of nominal financial variables with that of real financial variables and consider the proper number of financial predictors and time variations of forecasting performance. The forecasting results unambiguously indicate that financial variables have regained their predictive power since the financial crisis. Moreover, this study shows that real financial variables are superior to nominal variables and that using several financial indicators for forecasting GDP growth is preferable.     

从旭普林公司案看我国法院对国际商事仲裁的监督

运用国际商事仲裁的一般理论和国际商事仲裁立法与实践,结合我国法院就国际商会国际仲裁院仲裁庭根据该院仲裁规则就德国旭普林公司案在我国上海作出的仲裁裁决所实施的司法监督,探讨了国际商事仲裁裁决与涉外裁决、外国裁决和《纽约公约》项下的非本国裁决之间的联系与区别。由此认为本案项下的裁决,既不是我国裁决,也不是外国裁决,而是《纽约公约》项下的非内(本)国裁决。