Cost-Sharing in Civil Justice

As an economic factor affecting access to justice, the cost of justice naturally constitutes an element of judicial reform. It is the overall deconstruction of the cost of civil justice, rather than partial observation and analysis confined to litigation costs, that can legitimize the sharing of court and litigation costs and clarify the demarcation between public and private costs. This first-order rule of cost-sharing is intended to establish a balance between the state’s investment of public resources in the judicial system and the costs borne by the litigant. The second-order rule of cost-sharing centers on the distribution of litigation costs among litigants. This requires not only the setting up of the goal of just and equitable sharing of litigation costs, but also the overall consideration of the adjustment function of the cost mechanism in litigation and pursuit of the general improvement of the justice system. The third-order cost-sharing rule should focus on giving full play to the legal services market and social organizations in sharing the cost of litigation. Its success will depend on the development of professional ethics and on legal regulation.     

Judicial Approaches to Tobacco Control: The third Wave of Tobacco Litigation as aTobacco Control Mechanism

Tobacco products liability litigation is one of the most potentially effective means of controlling the sale and use of tobacco. Recent factual developments—concerning (1) the addictiveness of nicotine, (2) tobacco industry knowledge of this addictiveness, and (3) the industry's efforts to conceal its knowledge from the public while making its products more addictive—make it unlikely that the tactics used successfully by the tobacco industry in the first (1954 to 1973) and second (1983 to 1992) waves of tobacco litigation will succeed in the third wave of tobacco litigation. Victory in any of these cases would result in a transfer of costs from injured states or individuals to the tobacco industry. Such a transfer of costs would likely have the immediate impact of raising cigarette prices and thereby lowering cigarette consumption. The long-term effects of a victory would probably be much more devastating to the industry.     

Mortality risks induced by the costs of regulations

Regulatory costs are ultimately paid for by the individuals in our society. The reduction in disposable income can lead to changes in purchasing, such as for safety and health care; stress, such as from job loss; and behavior, such as smoking or alcohol consumption. On average, these changes induce greater mortality risks and lead to premature deaths. This paper examines cases in which regulatory costs are primarily placed either on the general public or on individuals in a specific industry. Several policy issues concerning the mortality risks of regulatory costs are addressed. Neglecting the consideration of the fatalities induced by regulatory costs in the setting of regulations will lead to unnecessary deaths of Americans.     

新时期农民诉讼意识的调查

诉讼意识是法律意识的核心,实现法治必须关注法律意识的培育。传统理论认为“无诉”在当代农民诉讼意识中居于主流地位。然而调查表明,新时期农民的诉讼法律意识较之以往,已经发生很大的变化。但由于农民的诉讼意识与具体的诉讼行为之间存在诸多障碍与矛盾,导致农民实际发生各种纠纷时,仍然较多地选择诉讼以外的解决方式。农村法治化进程缓慢更多的原因并不能简单归结于农民法律意识落后,实现法治的重任更多地在各级政府机关身上。     

Estimating Fatalities Induced by the Economic Costs of Regulations

Regulatory costs are paid by individuals, which leaves them with less disposable income. Since individuals on average use additional income to make their lives safer and healthier, the regulatory costs lead to higher mortality risks and fatalities. Based on data from the National Longitudinal Mortality Study relating income to the risk of dying, approximately each $5 million of regulatory cost induces a fatality if costs are borne equally among the public. If costs are borne proportional to income, approximately $11.5 million in regulatory costs induces a fatality. Cost-induced fatalities disproportionally burden the poor and minorities, particularly blacks.     

Total and partial Bivariate Risk Premia: An Extension

This paper investigates the link between the total bivariate risk premium and the sum of partial bivariate risk premia. Whereas in the case of small risks, the non interaction between risks is a sufficient condition to obtain the equality between the total risk premium and the sum of partial risk premia, the paper shows that this condition is not sufficient for large risks. The non interaction between risks occurs in two cases: if risks are independent or if individual's marginal utility of one good is independent of the endowment in the other. Without restriction on the utility function, none of these two conditions is sufficient for large risks. If attention is restricted to preferences that exhibit constant absolute risk aversion, the non variability of the marginal utility of good one with respect to variations in endowment in the other remains a sufficient condition, while the independence between risks does not.     

Liability risk in the pharmaceutical industry: Tort law in the US and UK

This paper examines the extent to which product liability risk contributes to the high costs of pharmaceuticals in the United States relative to prices in the United Kingdom. Research on pharmaceutical prices rarely accounts for the impact of liability risk, and none that we are aware of compares the United States and United Kingdom. Drawing on a dataset of 77 brand name drugs sold in both the U.S. and the U.K., we analyze relative manufacturers’ factory prices in each nation. We utilize several proxies for liability risk including drug litigation history, the percentage of plaintiff wins, and controlled substance classification. Importantly, under U.S. law there are no caps on the amount that can be awarded to a plaintiff claiming economic losses in the U.S. However, payouts in the U.K. are limited. Accounting for market differences and regulatory environments, we find liability risk can account for a portion of the price differential that exists between the U.S. and U.K., warranting further investigation.     

抗辩制改革的几点思考

我国的诉讼模式在新刑事诉讼法修改后发生了变化 ,这种变化在我国现有的司法体制之下有可能会出现这样的问题 :社会成本增加、事实与证据的取舍、缺少法律支持。如何解决与避免这些问题就是抗辩制改革的当务之急。     

Defensive Social Work

Correspondence to Nigel Harris, Department of Philosophy, The University, Dundee DD1 4HN. Summary Social workers with child clients face the possibility thatsome mistake or oversight of theirs could lead to a child abusetragedy, for which they may suffer opprobrium and blighted careers.How can they guard against such risks? This paper shows howsocial workers might use different types of ‘defensive’measure to protect themselves. These parallel the types of measureused by some doctors, particularly in the United States, facedwith risks of litigation on grounds of malpractice. Becausedefensive practices have undesirable consequences, it is importantto find ways to eliminate their use by protecting social workersby other means.     

Union carbide's Bhopal incident: A retrospective

This article examines the actual events of the Bhopal gas disaster as a prelude to considering the social treatment of catastrophic risks of this variety. In the context of the conference, Bhopal is held out to be symbolic of man-made catastrophes having sudden impact and is therefore the contrasting episode to an examination of the symbolic episode for gradual man-made catastrophes, asbestos liability. Bhopal is then connected to the circumstances which created a shortage of commercial catastrophe liability insurance in the 1980s. Its influence on the restructuring of the market is then discussed. A commentary on the buying habits of large industrial corporations is also included.     

Planning for natural disasters in a stochastic world

We examine the risks and management of natural disasters. A benefit-cost framework focuses attention on (1) designing control structures, such as dams and levees, and mitigation policies, such as construction standards, to protect lives and property against small and medium, rather than large sized natural disasters; and (2) warning and evacuation to save lives for large natural disasters. Providing information rather than command solutions generally enhances social benefits, if people understand the risks and bear the expected costs. Requiring actuarially fair insurance simultaneously provides information and has individuals bear the expected costs.     

A comparison of models for strategic planning,risk analysis and risk management

Summary Risks, uncertainties in firms and their environment are increasingly dealt with strategic planning, risk analysis and risk management. The present state of strategic planning enables us to consider the greatest part of internal and environmental risks mainly qualitatively - due to the fact that the majority of planning models used are of a deterministic type.The application of CAPM in strategic planning could take risks into account explicitly and maximize the expected value of the firms' common stock. Linked to a corporate simulation model or a DSS it could generate a series of values for the expected rate of return, its standard deviations as well as other output variables important for the management. The difficulties of the use of CAPM are numerous but an attempt to optimize the value of the firm would be a big step in developing new powerful instruments for evaluating the economic consequences of alternative strategies. The problems of CAPM lead to the considerations of the application of stochastic programming in strategic planning. For special cases solution methods can be developed and applied. The implementation of the Decision Support System in strategic planning could help to find the best decision in an interactive way - as suggested in this paper for the case of strategic marketing planning. DSS renders the consideration of other factors relevant to strategic decisions possible; businesses need not be reduced to portfolio terms. The limitations of CAPM, stochastic programming and the difficulties of the implementations of DSS for strategic planning could be partially avoided through the concept of Risk Management. On this concept strategic planning represents only one instrument of Risk Management and is a powerful tool of risk identification. In this paper the other instruments have been shortly demonstrated for the cases of product reliability and risks in relation with foreign countries. The development of new instruments for special cases (e.g., siting problems, specific strategic decisions, etc.), the considerations of risk behavior in individual, group and inter-organizational or even international decision making are now the main topics in the urgent task of research in risk management.     

环境公益诉讼制度的立法现状及其新课题

环境公益诉讼是在环境污染和生态破坏日趋严重的形势下,为保护环境公共利益的迫切需要而产生的。当下,在全国范围内发生的环境公益诉讼司法实践及某些地方制定的规范性文件牵动着国家层面的立法,并导致环境公益诉讼制度的诞生。然而,由于我国的社会价值取向、公民权利意识、法律思想、司法救济手段等诸多因素影响,使得环境公益诉讼立法不完整、不彻底,存在起诉主体受限、起诉条件过严、诉讼类型单一、相关机制的衔接不明等先天不足,让它面临新的挑战。     

Framing effects in the evaluation of multiple risk reduction

We studied how evaluation of changes in low-probability risks are affected by reference points and framing effects. Subjects considered hypothetical situations with one or two low-probability risks. Different frames were used to describe changes in risk levels. In the first experiment, subjects chose between risk-reduction options that achieved the same overall risk reduction: large reduction of one risk vs. equal (smaller) reduction of two risks. When the risks were described as losses relative to the no-risk ideal, more subjects were indifferent between the options than when the same options were described as gains relative to the status quo. In the latter case subjects preferred equal reduction of both risks, unless one risk could be reduced to zero. In a related experiment, subjects were less willing to pay any price for a commodity that carried small increases in two risks than for a commodity carrying a comparable large increase in one risk. In other experiments, subjects evaluated single changes in risks rather than comparing or evaluating pairs of changes. Subjects again placed particularly high value on reducing any risks to zero, and they were even more inclined to do so when some other risk would also be reduced to zero. In a final experiment, elimination of risk was found to be less highly valued if its source was not fully eliminated, and a status-quo effect was found. The findings are interpreted in terms of reference theories of choice.     

公益诉讼之法理分析

公益诉讼是相对于传统诉讼的一种新型诉讼模式 ,它在主体资格、受案范围、具体制度以及价值取向等方面具有其特殊的属性。这一制度的建立有助于公共利益的维护和良好的社会运行机制的形成。由于认识和制度上的缺陷 ,公益诉讼制度尚未在我国确立 ,以致在公共利益遭到侵犯时 ,缺乏有效司法救济途径。针对这一问题 ,文章在对公益诉讼制度进行法理分析的基础上 ,提出了建立我国公益诉讼制度的具体构想     

走向法庭还是走上街头：超越维权困境的一条行动路径

制度外抗争与制度内法律维权有着显著不同的结果和制度逻辑。现有文献中的“依法抗争”或“以法抗争”可以通过制度外或者制度边缘的集体行动获得政府及时的反应,但却有着多重困境：机会困境、风险困境、组织困境、制度困境。制度内法律维权可以很大程度上破解这些困境,但也有着该模式下独特的结果困境：费时费力而又缺乏即时直接的回报困扰或者阻碍制度内法律维权者去为了获得长期的有益于整个群体的普遍性制度化后果采取行动。但本研究中的业主维权行动在一定程度上破解了这一困境。他们的制度内维权行动让法律在实践中最大可能地运转了起来,从而超越了传统维权的困境。独特的政治机会结构和制度内维权本身所具有的特征,促进一些群体走向法庭,而非走上街头。     

Risk and its Management in Post-Financial Crisis Hong Kong

In the 1970s and up until the financial crisis occurred in the late 1990s, Hong Kong prospered in a relatively stable social, economic and political context. Since the financial crisis, however, its population has been increasingly exposed to risk: there has been job uncertainty and decreasing capacity for self‐reliance, leading to a growing reliance on public welfare and on families at a time when both are under pressure. The old welfare policies, unable to cope with the new risks, have been replaced by neo‐liberal reforms, redistributing the roles and responsibilities of the individual and the state, with a greater burden falling on the former. Individuals are required to be prudent to manage risk. While these reforms have relieved some of the burden on the state, both new social risk groups and ‘net taxpayers’ considered themselves to have borne disproportional costs. Society is facing serious problems resulting from ineffective old welfare policies, new social risks due to new policies, and the political upheavals arising from increased social conflicts and weakened social cohesion and solidarity. A further complication is that there is no acceptable platform or agent to negotiate a compromise between the polarized groups. This article argues that reliance on publicly funded risk coping strategies or on neo‐liberal risk prevention and mitigation strategies is not a desirable and sustainable policy. A commonly accepted political platform is required to negotiate a compromise which emphasizes shared and balanced roles and responsibilities, and a well‐conceived combination of risk prevention, mitigation and coping strategies.     

Terrorism and Probability Neglect

When strong emotions are involved, people tend to focus on the badness of the outcome, rather than on the probability that the outcome will occur. The resulting “probability neglect” helps to explain excessive reactions to low-probability risks of catastrophe. Terrorists show a working knowledge of probability neglect, producing public fear that might greatly exceed the discounted harm. As a result of probability neglect, people often are far more concerned about the risks of terrorism than about statistically larger risks that they confront in ordinary life. In the context of terrorism and analogous risks, the legal system frequently responds to probability neglect, resulting in regulation that might be unjustified or even counterproductive. But public fear is itself a cost, and it is associated with many other costs, in the form of “ripple effects” produced by fear. As a normative matter, government should reduce even unjustified fear, if the benefits of the response can be shown to outweigh the costs.     

转型社会下的多重复合性风险——三城市公众风险感知状况的调查分析

在社会转型期,中国公众的主观风险感知呈现地区差异和多重复合等特点,三重复合-高度不确定性风险、两重复合-中度不确定性风险和单重-低度不确定性风险三种结构的社会风险共存。研究发现,公众普遍对低不确定性的单重风险感知最高,对高不确定性的三重风险感知最低;教育水平较高、社会地位较高的群体对高不确定性三重风险的感知程度较高,底层社会群体则对低不确定性单重风险的感知程度较高。从公众在三种感知结构的分布情况来看,中国公众的风险感知包含了对转型社会多重风险并存、交互影响和交互作用的认识,即成为中国社会转型过程的风险投射。     

New social risks in postindustrial society: Some evidence on responses to active labour market policies from Eurobarometer

One result of the complex economic and social changes currently impacting on state welfare is the emergence of what may be termed "new social risks" as part of the shift to a postindustrial society. These concern access to adequately paid employment, particularly for lower-skilled young people, in an increasingly flexible labour market, and managing work-life balance for women with family responsibilities engaged in full-time careers. They coexist with the old social risks that traditional welfare states developed to meet, which typically concern retirement from or interruption to paid work, in most cases for a male "breadwinner". New social risks offer policymakers the opportunity to transform vice into virtue by replacing costly passive benefits with policies which mobilize the workforce, arguably enhancing economic competitiveness, and reduce poverty among vulnerable groups. However, the political constituencies to support such policies are weak, since the risks affect people most strongly at particular life stages and among specific groups. This paper examines attitudes to new social risk labour market policies in four contrasting European countries. It shows that attitudes in this area are strongly embedded in overall beliefs about the appropriate scale, direction and role of state welfare interventions, so that the weakness of new social risk constituencies does not necessarily undermine the possibility of attracting support for such policies, provided they are developed in ways that do not contradict national traditions of welfare state values.