法律解释的去理论化与立场转换——认知心理学的启示

学界提出的各种法律解释理论不仅仅在规范层面上无法自圆其说,同时也无法对法院的解释实践作出准确的描述。尽管针对美国联邦最高法院的经验研究表明法院的法律解释实践趋向于新文本主义和法律实用主义,但这些经验研究却没有证明法官遵循了这些解释理论。在对法律解释去理论化之后,如何看待实践中存在的微观不一致与宏观一致需要一种立场转换,即关注作为解释主体的法官的认知过程。     

Estimation of arrest careers using hierarchical stochastic models

This paper introduces a general procedure using hierarchical stochastic models for characterizing criminal careers within a population of heterogeneous offenders. Individuals engage in criminal careers which are treated as stochastic processes governed by fixed parameters (e.g., a rate parameter), and these parameters come from specified distributions. The parameters of these distributions at the upper level of the hierarchy must then be specified. The models are estimated using data on all persons arrested at least once in the six-county Detroit Standard Metropolitan Statistical Area during the 4 years 1974–1977 for a criterion offense (an index crime other than larceny) and arrested at least once for robbery through April 1979. The collected data set is not a random sample of all such offenders in the population. There is a bias toward selecting those with a higher arrest frequency. In order to make more general inferences, statistical adjustment was needed to overcome the arrest-frequency sampling bias. We construct a series of models for the arrest career and fit the models with the data set of arrests. After correcting biases in the data, we estimate the model parameters using empirical Bayes methods and then examine the resulting models.     

Distributive and procedural justice in interpersonal and intergroup situations: Issues,solutions, and extensions

This paper addresses theoretical issues relating to distributive and procedural justice. Specifically, comparisons are made between interpersonal and intergroup situations. Within the realm of distributive justice, two reinterpretations of the ingroup allocation bias are offered. One reinterpretation states that people show this bias to prevent being exploited by the outgroup. The other reinterpretation states that the bias can be regarded as a measure of the perceived worth of the ingroup in relation to the outgroup. The related issue of the procedure used for allocating resources is addressed by extending Tyler and Lind's (1992) Relational Model of Authority to all ingroup members in both interpersonal and intergroup situations. Reinterpretations and extensions offered in this paper lead to new theoretical insights and to several suggestions and predictions for future empirical research.     

Distinguishing between the effects of swing ratio and bias on outcomes in the US Electoral College, 1900–1992

We review a number of different statistical techniques for creating seats-votes curves and apply the most reliable of these to estimate seats-votes relationships in the US electoral college 1900–1992. We consider the now rejected claim, once firmly established as part of the common journalistic and even academic wisdom, that the US Electoral College has recently been strongly biased in favor of Republicans, and show that this claim was based largely on a confusion between bias (asymmetry in the electoral college gains earned by the votes received by different parties or candidates) and swing ratio (responsiveness of change in electoral college seat share to change in popular vote). Although there has been substantial bias during this century in the way the electoral college translates Democratic and Republican votes into electoral college seats, and for the earlier party of this century (from 1900 to 1940) that bias has been in favor of Republicans, to explain why many recent electoral college majorities have been so lopsided we must look not at bias but at swing ratio.We show that the swing ratio in the electoral college has generally been increasing since 1900, rising from an average value (1900–1924) around three to an average value (1976–1992) ranging from about five to about eight, depending upon which of the various statistical estimation techniques we use. Thus, for every one point vote share gain above 50 per cent, a winning presidential candidate in a two-candidate competition can now expect to pick up somewhere between a 5 percentage point and an 8 percentage point increase in electoral college seats—giving the illusion of mandate even for relatively close contests and frequently creating apparent landslides. We show that this historical rise in swing ratio in presidential elections is due almost entirely to changes in the responsiveness of outcomes in the US South as the influence of the Civil War slowly (very slowly) erodes. Drawing on the analysis of the determinants of bias and of swing ratio in the House of Representatives in Brady and Grofman (1991b), we show that the increases in electoral college swing can be accounted for by the nationalization of presidential competition as signaled by the decrease over time in the standard deviation of Democratic share of the two-party vote across states, and that changes in bias can be linked to changes in the magnitude of differences between the mean and the median of that distribution.     

作为所有权运动形式的信托——一个解决信托财产所有权归属问题的理论尝试

信托在本质上是财产所有权移转的特殊运动形式。正常情况下，所有权由委托人流向受托人，再经受托人流向信托关系外部；受托人违背信托义务的情况下，其已经享有的所有权权能，转而回流到委托人手中。所有权运动期间，受托人享有一种临界于所有权的、最大限度的定限物权，同时享有自动获得所有权的资格。所有权运动不会在实际上影响所有权归属功能的发挥，因为根据信托的性质，确定所有权归属的需要必然包含明确所有权归属的条件。     

存疑案件刑事赔偿归责原则

刑事赔偿的归责原则,为从法律价值上判断国家对刑事司法侵权造成损害应否承担法律责任提供了最根本的依据和标准,对于确定刑事赔偿责任的构成及免责条件、举证责任的负担以及承担责任的范围具有重大意义。笔者认为,我国的刑事赔偿,所确立的唯一的归责原则是违法原则。     

美国军事司法权归属性的再界定

关于美国军事司法权的归属性,当前的主流观点(美国军事司法权隶属于国家司法权)与美国的客观实际不符。事实上,美国的军事司法权从一开始就隶属于军事统帅权,但又受到国家司法权一定的制衡作用。     

Publication bias as a threat to the validity of meta-analytic results

This paper reviews the evidence in support of the contention that publication bias is a potential threat to the validity of meta-analytic results in criminology and similar fields. It then provides a critique of the traditional file drawer or failsafe N method for examining publication bias, and an overview of four newer methods that can be used to detect publication bias. These include two (trim and fill and cumulative meta-analysis) that enable the researcher to estimate the magnitude of the influence of publication bias on the overall mean effect size. Advantages and limitations of both traditional and newer methods are examined. The methods reviewed are illustrated through their application to a meta-analysis of the effects of drug courts on recidivism by Wilson et al. (Journal of Experimental Criminology, 2, 459–487, 2006).

群体性事件激发的群体认知基础

群体性事件是一种多因素共同作用下的一种特殊社会群体行为。民众"相对剥夺感"是群体行为的根本动力,而民众的社会认知偏差,则是影响调控群体事件行为进程与方向的重要因素。     

Crime Victims Serving as Jurors: Is There Bias Present?

This project examined the decisions of 2435 mock jurors of whom 984 reported being a victim of some type of crime and 982 reported knowing a close friend or relative who had been a victim. Participants watched a videotape of a trial of a burglary of a habitation and were asked to give individual verdicts. Results indicated that jurors who identified themselves as victims of the same crime convicted significantly more frequently than those who had not been victims. Victims of violent crimes (a type of crime dissimilar to that for which the defendant was on trial) were not more likely to convict than were non-victims. Implications of this research are discussed.