认定医疗过失行为的几个法则--医师的注意义务(5)

医师的过失行为本质是一种客观过失,是对医师注意义务的违反,考察医疗过失行为应合理的运用风险判断、专业判断、信赖原则来综合判断.     

Last Thoughts on <Emphasis Type="Italic">The Last Intellectuals</Emphasis>

Over twenty years ago my book The Last Intellectuals put into circulation the phrase “public intellectual.” The term unexpectedly enjoyed great success. It encapsulated a new division between a professional or academic intellectual focused on his or her specialty and an intellectual orientated to a larger public. The former tend to disappear into the university, while they latter write for the educated public. In the twenty years since its publication, my book has been sharply challenged. Moreover the emergence of African-American and women intellectuals, and well as new developments such as Internet, have possibly undermined my thesis. Yet these phenomena amount to revisions, not refutations, of my thesis. Moreover the role of intellectuals in France and Germany suggest that the same process of academization is taking place in other advanced industrial nations. What is called for is not nostalgia or its opposite, a celebration of everything that happens, but a consideration of the real shifts that affect the lives and work of intellectuals.

Structural change versus turnpike optimality: A Polish perspective

Using a modified dynamic IO model for Poland which allows taking into account actual trends observed in recently available statistical data we compare the rate of economic growth calculated for different growth paths resulting from the model. The goal of the research was to examine the distance between the actual structure of production and the structure on the turnpike and its impact on the economic growth of the economy under study. The results of the study indicate that the impact of structural change on output takes place in three general stages. The benefits of structural change do not outbalance the corresponding costs immediately, since it takes several periods until the growth rate of those paths which are closer to the von Neumann ray become larger than the corresponding growth rate of the benchmark growth path.     

Risk Aversion, Liability Rules, and Safety

This paper investigates the performance of liability rules in two-party stochastic externality problems where negotiations are feasible and side payments are based on the realized level of externalities. Results show that an increase in polluter liability does not necessarily increase safety or efficiency in cases where the polluter is risk neutral. Complete polluter liability is found to yield Pareto optimality. When either party is risk averse, an increase in polluter liability may sometimes reduce safety and efficiency. If the polluter is risk neutral and the victim is risk averse, Pareto optimality is only achieved by assigning full liability on the polluter, i.e. giving the victim complete property rights to a clean environment. If the polluter is risk averse and the victim is risk neutral, no level of polluter liability is optimal. In this case, optimality can only be achieved through a contract on abatement activities, such that the risk-averse polluter receives a guaranteed payment regardless of the stochastic outcome.     

纷争与共识——波斯纳实用主义法学的系谱解释之一

从实用主义哲学渊源、美国法理学传统、后现代思潮影响和社会共识与法律知识的关系等角度可以说明,作为法律学生、法学家和法官的波斯纳在采纳实用主义法理学和法律经济学的侧面参照,文章说明,更重要的参照系还是社会现实,而不是理论本身。     

刑法的经济与反经济分析

波斯纳刑法的经济分析关于刑罚的目的既不能包含报应刑论和特殊预防论,其提出的政策方案也不能取得有效的一般预防效果,加上与其法律经济分析的并不合正义的哲学基础——财富最大化的逻辑矛盾,所以刑法的经济分析的意义十分有限,对刑法进行纯经济立场的分析是不充分的。     

法律如何解决政治性问题 --波斯纳的视角

很多法律问题和政治密切相关,有些政治问题也需要通过法律途径来解决.波斯纳认为,在美国的文化中,不必因为法律中渗透了大量的政策或政治而大惊小怪,因为法律从来都不是仅仅由法条构成的封闭的系统.法官应该有更高的政治敏感性,以应付各种突发事件.判决的公正与否很大程度上是力量对比折射到人们的政治共识或者道德共识的结果.     

Whither Equality? Securing the Lay Citizens' Place Inside the Criminal Justice System

This paper argues that lay jurors should be given a more extensive position in making decisions about misdemeanour cases. The paper constitutes a qualified defense of the 2011 judicial French reform. This reform associates two extra jurors to the already existing three magistrates in charge of misdemeanour cases. Two arguments are presented in favour of this measure. The first argument is that increasing the number of decision‐makers improves the accuracy of verdicts. I call this the argument from quantity. The second argument is that fostering more identity diversity between decision‐makers tends to improve the quality of group decisions. I call this the argument from diversity. The argument from quantity and the argument from diversity are supported by the more general idea that one of the chief rationales of any judicial system is that of ensuring the defendants' equality of protection.