Journal of Legal Analysis最新文献_第7页

Incentives to Invest in Litigation and the Superiority of the Class Action 诉讼投资激励与集体诉讼的优越性

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2014-09-12 DOI: 10.1093/JLA/LAU006

D. Rosenberg, K. Spier

引用次数: 18

Moral Realism and the Heuristics Debate 道德现实主义与启发式辩论

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2013-12-01 DOI: 10.1093/JLA/LAT004

M. Kelman

{"title":"Moral Realism and the Heuristics Debate","authors":"M. Kelman","doi":"10.1093/JLA/LAT004","DOIUrl":"https://doi.org/10.1093/JLA/LAT004","url":null,"abstract":"There has been substantial debate in the legal academy centered on the questions of whether universal moral intuitions exist and, if so, whether these intuitions have a privileged normative status, a debate both reflecting and partly reinterpreting classical jurisprudential debates about the existence of “natural law” and “natural rights.” There is a strong but underappreciated homology between the debates about the nature and quality of intuitive moral reasoning, and debates, associated with the Heuristics and Biases (H&B) school on the one hand and the “Fast and Frugal” (F&F) school on the other, about the nature and quality of our capacity to make self-interested decisions (decisions requiring both factual and a-moral evaluative judgment and decision making ability. There are those in the legal academy, most prominently Cass Sunstein, who accept that people indeed often have strong moral intuitions but believe these predispositions deserve little or no normative deference because the intuitions frequently merely reflect the use of inapt rules of thumb. Others, most prominently John Mikhail, believe people readily make non-reflective moral judgments that we cannot readily explain or justify logically that are grounded in our capacity to process a quite small number of critical features of a decision situation in precisely the way that F&F theorists believe we make most judgments. I explore the degree to which some of the virtues, and, more importantly, most of the problems, in both Sunstein's and Mikhail’s work are the features and shortcomings that have bedeviled the work of each of the schools on heuristic reasoning.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74522968","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: 6

An Information-Forcing Approach to the Motion to Dismiss 驳回动议的信息强制方法

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2013-12-01 DOI: 10.1093/JLA/LAT002

S. Issacharoff, G. Miller

{"title":"An Information-Forcing Approach to the Motion to Dismiss","authors":"S. Issacharoff, G. Miller","doi":"10.1093/JLA/LAT002","DOIUrl":"https://doi.org/10.1093/JLA/LAT002","url":null,"abstract":"This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84001005","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: 11

Editorial Bias in Legal Academia 法律学界的编辑偏见

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2013-10-01 DOI: 10.1093/JLA/LAT005

Albert H. Yoon

引用次数: 18

Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory 违宪条件问题无处不在:退出与整理对宪法法律与理论的启示

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2013-06-01 DOI: 10.1093/JLA/LAS018

Adam B. Cox, Adam M. Samaha

{"title":"Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory","authors":"Adam B. Cox, Adam M. Samaha","doi":"10.1093/JLA/LAS018","DOIUrl":"https://doi.org/10.1093/JLA/LAS018","url":null,"abstract":"Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal with discretionary benefits supplied by the very same government. A related reason is more fundamental and inspirational: constitutional claimants are almost always allowed to exit the relevant institution and enter another. This possibility of sorting across multiple institutions generates unconstitutional conditions questions by making nearly every government imposition at least nominally optional. Moreover, exit and sorting dynamics operate in contexts far beyond people physically migrating to new locations. The full implications of exit and sorting have been neglected by constitutional theorists, who tend to assume a static population within one political community or to focus on crude arguments about “voting with your feet.” This article is an initial effort to check these tendencies, and to move exit and sorting toward the center of constitutional law and theory.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81164913","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

Rights to do Grave Wrong 犯严重错误的权利

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2013-06-01 DOI: 10.1093/JLA/LAS015

M. Osiel

{"title":"Rights to do Grave Wrong","authors":"M. Osiel","doi":"10.1093/JLA/LAS015","DOIUrl":"https://doi.org/10.1093/JLA/LAS015","url":null,"abstract":"Rights to do grave wrong arise whenever the law permits conduct that ordinary morality severely reproaches. We examine one good reason, ignored by legal thought, why such rights develop: because their undoubted dangers are mitigated by extra-juridical encumbrances on their irresponsible exercise, establishing a normatively acceptable equilibrium. This complex of rights-cum-restraints amounts to an implicit regulatory strategy, applicable far afield, presenting at once distinct perils to moral order and an efficient solution to certain regulatory predicaments. It should sometimes give pause to extending law’s reach into certain corners, at least, of private ordering. To enforce the relevant restraints, our law tacitly relies on social stigmatization, yet does so without clear appreciation of when such reliance becomes problematic. It is especially so where: (i) the legal right to which responsibilities are linked arises from an essential task or position authorizing one to cause grave harm; (ii) the scope of the right would hence be very limited, but for our confidence in assurances that concomitant moral duties will be honored; and (iii) the nonjuridical supports for fulfillment of these duties are uncertain, apparent only via arduous empirical inquiry, or simply defy description in a satisfactory modern idiom.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81764225","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: 2

A Positive Theory And Empirical Analysis Of Strategic Word Choice In District Court Opinions 地方法院意见书中策略性用词的实证理论与实证分析

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2012-12-01 DOI: 10.1093/JLA/LAS014

R. Hinkle, Andrew D. Martin, J. D. Shaub, Emerson H. Tiller

{"title":"A Positive Theory And Empirical Analysis Of Strategic Word Choice In District Court Opinions","authors":"R. Hinkle, Andrew D. Martin, J. D. Shaub, Emerson H. Tiller","doi":"10.1093/JLA/LAS014","DOIUrl":"https://doi.org/10.1093/JLA/LAS014","url":null,"abstract":"Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77640939","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: 28

Who Hangs Whom for What? The Death Penalty in Japan 谁因为什么而绞死谁?日本的死刑

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2012-12-01 DOI: 10.1093/JLA/LAS013

J. Ramseyer

引用次数: 2

The Law's Delay: A Test of the Mechanisms of Judicial Peer Effects 法律的延迟:对司法对等效应机制的检验

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2012-12-01 DOI: 10.1093/JLA/LAS017

T. Miles

{"title":"The Law's Delay: A Test of the Mechanisms of Judicial Peer Effects","authors":"T. Miles","doi":"10.1093/JLA/LAS017","DOIUrl":"https://doi.org/10.1093/JLA/LAS017","url":null,"abstract":"The presence of “peer effects”—that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel—is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading theories of peer effects hold for the speed of judicial decision-making. One set of theories asserts that peer effects result from preference-revealing interactions among judges, such as deliberation or negotiation. These interactions are potentially time-consuming. Other theories, such as whistleblowing and dissent aversion, claim that peer effects result from a judge’s response to existing knowledge of her colleagues’ preferences. These responses are potentially instantaneous. A simple prediction is that if bargaining or deliberation, rather than whistleblowing or dissent aversion, causes peer effects, ideologically mixed panels should be slower to render decisions than ideologically homogenous panels. The article tests this prediction against a sample of administrative law decisions that have previously been shown to exhibit strong peer effects. The article’s main estimates show that the ideological diversity of a panel does not correlate with the speed of decision-making. This finding suggests that preference-revealing interactions do not cause judicial peer effects. But, the results show that law, specifically deference standards, influence the speed of decision-making. A court is substantially quicker when validating rather than invalidating an agency decision, regardless of the panel’s affinity for the substance of the agency decision.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79648474","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: 8

What Is Law? A Coordination Model of the Characteristics of Legal Order 什么是法律?法律秩序特征的协调模型

IF 2.2 1区社会学

Journal of Legal Analysis Pub Date : 2012-09-01 DOI: 10.1093/JLA/LAS008

Gillian K. Hadfield, Barry R. Weingast

引用次数: 108