Journal of Legal Analysis最新文献_第10页

Did a Switch in Time Save Nine 时间上的改变能拯救九个孩子吗

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2010-03-20 DOI: 10.1093/JLA/2.1.69

Daniel E. Ho, K. Quinn

引用次数: 34

Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation 关于歧义的歧义:法律解释的实证探究

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2010-03-20 DOI: 10.1093/JLA/2.1.257

W. Farnsworth, Dustin F. Guzior, A. Malani

{"title":"Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation","authors":"W. Farnsworth, Dustin F. Guzior, A. Malani","doi":"10.1093/JLA/2.1.257","DOIUrl":"https://doi.org/10.1093/JLA/2.1.257","url":null,"abstract":"Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter. To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"37 1","pages":"257-300"},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85488385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 45

The Dispensable Lives of Soldiers 士兵们可有可无的生活

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2010-03-20 DOI: 10.1093/JLA/2.1.115

Gabriella Blum

{"title":"The Dispensable Lives of Soldiers","authors":"Gabriella Blum","doi":"10.1093/JLA/2.1.115","DOIUrl":"https://doi.org/10.1093/JLA/2.1.115","url":null,"abstract":"Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations. This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately. I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible. I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"27 1","pages":"115-170"},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85936070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 82

Impossibility, Impracticability, and Frustration—Professor Goldberg Constructs an Imaginary Article, Attributes it to Me, and then Criticizes it 不可能、不实用和挫折——戈德堡教授构建了一篇虚构的文章，把它归于我，然后批评它

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2010-03-20 DOI: 10.1093/JLA/2.1.383

M. Eisenberg

{"title":"Impossibility, Impracticability, and Frustration—Professor Goldberg Constructs an Imaginary Article, Attributes it to Me, and then Criticizes it","authors":"M. Eisenberg","doi":"10.1093/JLA/2.1.383","DOIUrl":"https://doi.org/10.1093/JLA/2.1.383","url":null,"abstract":"Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading fi gure in the law-and-economics of contracts, has now published a counter-article, “ Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports to be a criticism of mine, in fact most of his points are directed to an Imaginary Article he has constructed out of thin air, consisting of statements I did not make and positions I did not imply. Accordingly, a major reason for this response is to set the record straight by comparing what Goldberg says that I said and implied with what I actually said and implied. 2 In addition, those portions of Goldberg’s article that addressed what I did write are for the most part either based on a fallacious rhetorical device, simply incorrect, or both. Therefore, a second reason for this response is to show where and why Goldberg’s criticisms go astray. Finally, in one instance Goldberg has identifi ed an erroneous sentence in “Impossibility, Impracticability, and Frustration,” and I also write to acknowledge that error. 1 . THE SHARED-ASSUMPTIO N TEST One thesis of “Impossibility, Impracticability, and Frustration” was that judicial relief from a contract normally should be granted if (1) the contracting parties shared a tacit assumption that the occurrence or nonoccurrence of some circumstance during the life of the contract was certain rather than problematic; (2) the assumption was incorrect; and (3) the incorrectness of the assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. I called this the shared-assumption test.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"44 3 1","pages":"383-396"},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76209805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reforming the Taxation and Regulation of Mutual Funds: A Comparative Legal and Economic Analysis 共同基金税收与监管改革:法律与经济的比较分析

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-08-28 DOI: 10.1093/JLA/1.2.591

I. J. C. Coates

引用次数: 19

The Role of Probability of Detection in Judgments of Punishment 发现概率在刑罚判断中的作用

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-08-28 DOI: 10.1093/JLA/1.2.553

J. Baron, Ilana Ritov

{"title":"The Role of Probability of Detection in Judgments of Punishment","authors":"J. Baron, Ilana Ritov","doi":"10.1093/JLA/1.2.553","DOIUrl":"https://doi.org/10.1093/JLA/1.2.553","url":null,"abstract":"In nine experiments — one a questionnaire given to Israeli judges, the rest on the World Wide Web — we examined the effect of probability of detection of an offense on judgments of punishment. When cases differing in probability were separated, we found almost no evidence for attention to probability (as found previously by others). When cases were presented next to each other, however, a substantial minority of subjects took probability into account. Attention to probability was increased in one study by a probe manipulation concerning deterrent effects. We found inconsistent effects of identifying the perpetrator, or of asking subjects to consider policies versus individuals. Some subjects thought that it was unfair to consider probability, but more subjects thought that probability was relevant because of the need for deterrence. We suggest that the failure to consider probability is to some extent an example of the “isolation effect,” in which people do not think much about secondary effects, rather than entirely a result of ideological commitment to a “just desserts” view of punishment. “To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.” (Bentham, 1948/1843, Ch. 14, section XVIII).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"2 1","pages":"553-590"},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74070259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 26

Social Norms in the Courts of Ancient Athens 古雅典宫廷中的社会规范

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-08-28 DOI: 10.1093/JLA/1.2.691

Adriaan Lanni

引用次数: 22

Rational Judicial Behavior: A Statistical Study 理性司法行为:一个统计研究

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-08-28 DOI: 10.1093/JLA/1.2.775

W. Landes, R. Posner

{"title":"Rational Judicial Behavior: A Statistical Study","authors":"W. Landes, R. Posner","doi":"10.1093/JLA/1.2.775","DOIUrl":"https://doi.org/10.1093/JLA/1.2.775","url":null,"abstract":"This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"49 1","pages":"775-831"},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86094512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 91

The Prisoners’ (Plea Bargain) Dilemma 囚犯(辩诉交易)困境

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-08-28 DOI: 10.1093/JLA/1.2.737

O. Bar‐Gill, O. Ben‐Shahar

引用次数: 40

Bonham's Case, Judicial Review, and the Law of Nature 博纳姆案，司法审查和自然法

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2009-01-21 DOI: 10.4159/JLA.V1I1.5

R. Helmholz

{"title":"Bonham's Case, Judicial Review, and the Law of Nature","authors":"R. Helmholz","doi":"10.4159/JLA.V1I1.5","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.5","url":null,"abstract":"Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"101 1","pages":"325-354"},"PeriodicalIF":2.2,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88920319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 13