Does School Finance Litigation Cause Taxpayer Revolt? Serrano and Proposition 13

An influential theory argues that court-ordered school finance equalization undermines support for public schools. Residents of wealthy school districts who cannot keep their tax revenues for their own school districts may vote to limit school funding altogether. Proponents of this theory point to Serrano v. Priest , a 1977 decision of the California Supreme Court that mandated equalization of school financing and was followed almost immediately by Proposition 13, a ballot initiative to limit the local property tax. I test the theory that these two events were causally related by using hierarchical models to analyze voters within school districts. I find no evidence that opposition to school finance equalization contributed to the tax revolt. Claims about the perverse consequences of school finance litigation should be greeted with skepticism.     

现代诉讼的法理性透视

现代社会的诉讼制度设计根据社会冲突的性质可主要划分为三种类型。即民事诉讼制度、刑事诉讼制度和行政诉讼制度。这三大诉讼在程序设计上有着共通的法理 ,即公正与衡平。文章从程序结构法理以及程序运作法理这两个方面对此进行了论述。随后 ,本文通过对诉讼中引入“合意机制”的思考 ,对现代诉讼的价值导向进行了反思 ,指出弘扬个体自治的深远意义。     

Products liability issues in school asbestos litigation

The hazards posed by deteriorating friable asbestos in the nation's schools are causing serious concerns for public health officials, school boards, parents and school employees. Reports by both the Environmental Protection Agency and the U.S. Attorney General's Office agree that both school children and school employees stand a substantially increased risk of contracting some form of asbestos-related disease as a result of exposure to deteriorating asbestos materials in school buildings. School systems plagued by the asbestos hazards are now filing suits against asbestos manufacturers alleging causes of action in breach of warranty, negligence and strict products liability in tort. Some plaintiffs in school asbestos litigation seek to recover the costs of EPA-mandated asbestos inspection and abatement programs which have already been completed. Still others request injunctions to compel the manufacturers themselves to conduct inspections and finance abatement. This Note examines the school asbestos situation from a legal perspective and focuses primarily on whether the schools' claims should be considered as economic losses or as property damage. It examines the impact of statutes of limitations on these cases under both contract and tort theories. The Note argues that school asbestos claims should be decided under a strict products liability standard.     

Legal Mobilization and the Politics of Reform: Lessons From School Finance Litigation in Kentucky, 1984-1995

This article is about legal mobilization by claimant groups seeking left-liberal reform in the United States. Drawing on a growing body of work in political science and legal studies, it takes an interpretive, legal-mobilization approach to one litigation-based reform effort: school finance litigation and education reform in Kentucky. In turn, this case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. The article argues that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers. Specifically, it highlights and explicates the meaning of two related themes: (1) legal translation, taken up here as legal framing and legal construction, and (2) the degree of coherence or fit between the legal and political components of reform projects that include both legal mobilization and extrajudicial strategies and tactics. This article suggests that the "degree of coherence" may have an important but underappreciated relationship to the overall success or failure of such reform projects.     

A cure for the Blues: resolving nonprofit Blue Cross conversions

This Article analyzes the issues involved in converting nonprofit Blue Cross organizations to for-profit status. These issues have arisen in the context of litigation regarding the "reorganization" of Blue Cross and Blue Shield of Missouri ("BCBSMo"). BCBSMo had reorganized by creating and transferring a majority of its business to a new for-profit subsidiary. Missouri consumer groups and state regulators characterized the "reorganization" as a conversion requiring BCBSMo to transfer its assets to a foundation dedicated to charitable health purposes. BCBSMo, however, denied that it had any obligation to leave behind its assets in the nonprofit sector. The BCBSMo litigation raises issues common to most conversions of nonprofit healthcare organizations, particularly conversions of nonprofit Blue Cross plans. This Article provides a road map for state regulators and the public to follow in ensuring that the public interest is fully protected in such conversions.     

我国巡回审判的实践反思与制度构建

巡回审判制度是人民法院特别是基层人民法院的一项重要诉讼制度。它所体现的“两便”和“三个面向”原则在化解基层纠纷、维护社会和谐、实现公平正义、提高审判效率等方面具有显著意义，在普法宣传方面也彰显了独特的辐射效应。但巡回审判制度在当前司法实践中的运行尚显粗放，存在着规范缺失、效果不理想、缺乏长效实施的动力机制等诸多问题，需要进行法治化的制度设计，也需要在人才管理、物质保障、部门联动等方面实现制度创新。     

论“土地财政”的效应、成因及其法律解决之道

“土地财政”是指地方政府在财政资金短缺的情况下,主要利用土地出让法律制度和土地税费法律制度来获取财政收入以充实本地政府财源的行为.地方政府的“土地财政”行为引发了正负两方面的效应,对负效应的分析显然更为重要.地方政府的“土地财政”行为有其深刻的制度成因.解决“土地财政”的法律措施是完善财政收支法律制度,合理配置中央和地方的财政权限;改革和完善财政转移支付法律制度;改革现行的土地制度和土地征收制度.     

State services for children: an exploration of who benefits, who governs

In recent years, equity, choice, and efficiency issues in the provision of education have received much attention and analysis. Yet, in the area of other state services for children (health, protective services, day care, etc.), there has been scant concern for equity, efficiency, or choice, despite the fact that out-of-school influences can be crucial in determining in-school performance. This paper reports on work in progress that reaches the following initial conclusions: 1. In the field of children's social services, data compilation is approximately 20 years behind the state of the art for education. Basic data on services provided is not collected for submission to state or federal authorities in any standard format on a recurring basis. 2. From the limited data available, the access of children to quantity and quality in social service programs varies enormously within states. The variations are much larger than those discovered in the public financing of education even before the recent school finance reform movement (1968-1978). 3. Federal allocations to states for social service programs comprise a substantial proportion of state Title XX budgets. For several reasons, the degree of accountability for these funds is less than that for federal education grants. 4. In all three states Title XX state allocations to localities are purported to be based on need. Closer examination of the formulas, and interviews with policy makers, revealed that Title XX allocations are determined primarily by political criteria.     

个人生物识别信息民事权利诉讼救济问题研究

我国《民法典(草案)》将"生物识别信息"列入"隐私权和个人信息保护"的范围。目前,在外国以保护隐私权思路保护个人生物识别信息的民事诉讼实践中所遇到的困难主要包括:"类主体"与"类事由"化问题;侵权行为的"程序性违法"问题;传统"案件—诉讼—损害"的民事法理逻辑对损害赔偿的限定等问题。充分完善"类诉讼"制度;解决新兴权利的法律赋权问题;确定"程序性违法"的"损害"认定标准以及完善举证责任制度,是保证个人生物识别信息民事权利诉讼救济充分实现的制度优化措施。     

我国建立纳税人诉讼的几个问题

纳税人诉讼是指以纳税人身份对政府的违法公共支出行为等向法院提起的诉讼。人民主权、保障人权、税收价格论为纳税人诉讼提供了理论基础,我国宪法赋予公民监督权的规定则是其法律依据。法治发达国家普遍建立了纳税人诉讼,并开展了丰富的诉讼实践。我国建立纳税人诉讼是保护公民私有财产权、建设公共财政和法治政府、推进宪政国家建设的重要保障,具有现实迫切性和深远意义。应当在行政诉讼法的修改和税法通则的制定中,对纳税人诉讼的受案范围、原告资格、举证责任等作出特别规定。     

Comparing Justice and Labor Department lawyers: ten years of occupational safety and health litigation

Federal regulatory programs are strongly influenced by the outcome of litigation seeking to challenge or to enforce those programs. Competition exists between the Department of Justice and numerous federal agencies for control of that litigation. This article proposes several measures for comparing litigation conducted by the Justice Department with that done by the agency whose program is being-litigated. It then uses case data to compare the Justice Department's and the Labor Department's handling of litigation under the Occupational Safety and Health Act from 1972 through 1980. The findings show relatively little difference attributable to the identity of the litigator in the types or numbers of cases brought, the appeal rates, or the success rates. This suggests that further research, including other measures of difference, are needed to discern whether who controls the litigation matters as much as theory predicts it might and the lawyers involved believe it does.     

Kyoto Mechanisms: Key Issues for Policy-makers for COP-6

This article provides an assessment of the "Kyoto mechanisms" – joint implementation, Clean Development Mechanism (CDM) and emissions trading established pursuant to Articles 6, 12 and 17 of the Kyoto Protocol. It focuses on significant policy issues raised by supplementarity, liability, equity and the design considerations relevant to operationalizing the mechanisms nationally and internationally.     

经济法责任的实现与公诉权的现代转型

经济法责任有着自己独特的形态以及责任承担方式,经济法责任的实现机制主要是行政执法机制和诉讼机制,公益诉讼符合经济法责任社会性的要求,与经济法责任的实现之间具有天然的契合性。传统公诉权在我国长期被认为专指"刑事公诉权",客观上阻却了现代公诉权的拓展。随着现代法律对国家和社会公共利益保护的加强,传统公诉权制度日显单薄和不足。因此,建构现代公诉制度不仅是公诉权在具体制度中的应用和拓展,而且更加有利于强化检察机关法律监督职能,进而更好地保护国家和社会公共利益,维护社会公平正义,有效实现经济法责任。     

民事诉讼收费制度改革的理念及路径

民事诉讼收费的合理性在一定程度上反映着一个国家的人民享受法律保障的程度。但我国自开始实行诉讼收费制度以来,所有有关诉讼收费的规范均由最高人民法院制定,在我国目前各级财政尚不能全额支付法院全部所需费用的情况下,法院本身与诉讼收费有着直接的利益关系,诉讼收费成为支撑审判成本的主要来源。这种制度安排不但使当事人承担了高额的诉讼成本,而且可能直接阻却当事人行使诉权。因此,诉讼收费制度的改革势在必行。我国应当理性地确定国家和当事人各自应承担的审判成本,并应将诉讼收费制度纳入民事诉讼法的调整范畴。     

从税务行政诉讼看税务执法风险的产生和防范

税务机关行政执法的风险之一就是引发行政诉讼,在税务行政诉讼中,税务机关败诉的情况时有发生,因此,有必要从税务行政诉讼角度对税务执法风险问题进行探讨。本文对税务行政诉讼中出现的问题进行了分析,提出了规避税务执法风险的六种措施。     

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well‐defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.     

Is obesity really the next tobacco? Lessons learned from tobacco for obesity litigation

This article draws important lessons from the history of tobacco litigation that can be applied to the current obesity problem in the United States. The author's close analysis of potential issues surrounding the obesity problem in this country yields the conclusion that litigation alone may not be the best answer. Her article offers a compelling perspective on the history of tobacco litigation, a thorough analysis of the issues surrounding the obesity problem and several potential perspectives on dealing with the situation at hand.     

宪法为什么要诉讼

宪法诉讼重视在法律实践中调动社会一切力量发现法律违宪的问题,对法律实践的尊重意味着人类承认有自己未知的领域存在,承认法律与人们的利益息息相关。宪法诉讼要求在法院解决问题,违宪审查是一个法律问题,应当用法律的方式、在法院、由法官们来决定。宪法诉讼是群众发现法律问题的智慧和法官解决法律问题的智慧的有机结合。     

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.     

Information technology in complex civil litigation in England and Wales

The use of information technology in civil litigation in England and Wales is in its infancy. In particular, litigation support systems are used by few,¹ and only within some solicitors’ offices and barristers’ chambers. The process of litigation support has not yet been taken from the solicitor's office into the court room.

Complex litigation is an area of legal practice particularly apt to benefit from the use of modern information technology both before trial and during the trial. Complex litigation involves such a diversity of issues, allegations of fact, and divergent opinions as to be difficult to retain within the short term memory of one human brain for the length of time taken by the exposition of the evidence and argument followed by judicial analysis and expression of the judgment.

This type of litigation also benefits from intervention by the Court in the preparations for trial, and in that endeavour information technology would also be most helpful.

In this article I shall try to review in very general terms what is done and what could be attempted. I shall generally concentrate on civil rather than criminal litigation.

The views expressed are my views alone.