In any comparative survey of responses to water scarcity, a contribution from Canada is usually met with a sense of incredulity. Canada has a reputation for enjoying abundant freshwater supplies. Canada's experience in dealing with water scarcity is less well-known than its potential role of providing a solution to water shortages in arid parts of the United States through sometimes fantastic water diversion schemes. Although many plans have been suggested for transferring water from Canada to the United States, the two most notorious are the 1963 scheme by the North American Water and Power Alliance to dam major rivers in British Columbia and take water south through the Rocky Mountain trench, and the 1985 GRAND Canal project to divert water from James Bay in northern Quebec through the Great Lakes to the western United States. Despite the economic infeasibility of both schemes, they are frequently resurrected in popular writing about water. The impression of abundant Canadian water supplies suggested by such grandiose plans is fortified by the dubious distinction that Canadians are one of the most prolific consumers of water, per capita, in the world. This image of plenty is, however, misleading. Canada suffers regional water shortages, even in areas where water supply has traditionally been abundant. In western Canada, the threat of water shortages is more well known and has inspired water legislation since the earliest days of European settlement. This Article focuses on the experience of the prairie provinces of Alberta, Saskatchewan, and Manitoba, which stretch northward from the 49th parallel to the 60th parallel and extend eastward from the Continental Divide to Hudson Bay and Lake of the Woods on the western boundary of Ontario. The southern regions of the prairie provinces are known as Palliser's Triangle, in homage to the leader of a Royal Geographical Society expedition from 1857 to 1860, who maintained that their arid climate would constitute a barrier to settlement. The area experiences annual precipitation of between 12 and 16 inches and suffers from chronic water shortages. The historical concern about lack of water in this region is exacerbated by the fact that most supplies in the area are drawn from the major glacier-fed river systems that have their source in the Rocky Mountains. The Athabasca glacier, which feeds the Saskatchewan River system, for example, has been receding at an accelerated rate since 1960 and is now shrinking at a rate equivalent to about 30 percent every century. In recent times, long-standing concerns about present and future water supplies have been increased by the rapid growth in the population and economy of the area.
{"title":"Responding to Water Scarcity in Western Canada","authors":"D. Percy","doi":"10.7939/R3222RM41","DOIUrl":"https://doi.org/10.7939/R3222RM41","url":null,"abstract":"In any comparative survey of responses to water scarcity, a contribution from Canada is usually met with a sense of incredulity. Canada has a reputation for enjoying abundant freshwater supplies. Canada's experience in dealing with water scarcity is less well-known than its potential role of providing a solution to water shortages in arid parts of the United States through sometimes fantastic water diversion schemes. Although many plans have been suggested for transferring water from Canada to the United States, the two most notorious are the 1963 scheme by the North American Water and Power Alliance to dam major rivers in British Columbia and take water south through the Rocky Mountain trench, and the 1985 GRAND Canal project to divert water from James Bay in northern Quebec through the Great Lakes to the western United States. Despite the economic infeasibility of both schemes, they are frequently resurrected in popular writing about water. The impression of abundant Canadian water supplies suggested by such grandiose plans is fortified by the dubious distinction that Canadians are one of the most prolific consumers of water, per capita, in the world. This image of plenty is, however, misleading. Canada suffers regional water shortages, even in areas where water supply has traditionally been abundant. In western Canada, the threat of water shortages is more well known and has inspired water legislation since the earliest days of European settlement. This Article focuses on the experience of the prairie provinces of Alberta, Saskatchewan, and Manitoba, which stretch northward from the 49th parallel to the 60th parallel and extend eastward from the Continental Divide to Hudson Bay and Lake of the Woods on the western boundary of Ontario. The southern regions of the prairie provinces are known as Palliser's Triangle, in homage to the leader of a Royal Geographical Society expedition from 1857 to 1860, who maintained that their arid climate would constitute a barrier to settlement. The area experiences annual precipitation of between 12 and 16 inches and suffers from chronic water shortages. The historical concern about lack of water in this region is exacerbated by the fact that most supplies in the area are drawn from the major glacier-fed river systems that have their source in the Rocky Mountains. The Athabasca glacier, which feeds the Saskatchewan River system, for example, has been receding at an accelerated rate since 1960 and is now shrinking at a rate equivalent to about 30 percent every century. In recent times, long-standing concerns about present and future water supplies have been increased by the rapid growth in the population and economy of the area.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"83 1","pages":"2091"},"PeriodicalIF":1.6,"publicationDate":"2006-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71369403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Significant controversy surrounds the issuance of legal opinions in structured finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt. Reflecting at its core the unresolved boundaries between public and private in financial transactions, this controversy raises important issues of first impression: To what extent, for example, should lawyers be able to issue legal opinions that create negative externalities? Furthermore, what should differentiate the roles of lawyers and accountants in disclosing information to investors? Resolution of these issues not only helps to demystify the mystique, and untangle the morass, of legal-opinion giving but also affects the very viability of the securitization industry, which dominates American, and increasingly global, financing.
{"title":"The Limits of Lawyering: Legal Opinions in Structured Finance","authors":"S. Schwarcz","doi":"10.2139/SSRN.657521","DOIUrl":"https://doi.org/10.2139/SSRN.657521","url":null,"abstract":"Significant controversy surrounds the issuance of legal opinions in structured finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt. Reflecting at its core the unresolved boundaries between public and private in financial transactions, this controversy raises important issues of first impression: To what extent, for example, should lawyers be able to issue legal opinions that create negative externalities? Furthermore, what should differentiate the roles of lawyers and accountants in disclosing information to investors? Resolution of these issues not only helps to demystify the mystique, and untangle the morass, of legal-opinion giving but also affects the very viability of the securitization industry, which dominates American, and increasingly global, financing.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"84 1","pages":"1"},"PeriodicalIF":1.6,"publicationDate":"2005-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67787701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract interpretation is an understudied topic in the economic analysis of contract law. This paper combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the four corners rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of extrinsic nonevidence. Gap filling is distinguished, and the relativity of interpretive doctrine to the interpretive medium - jurors, arbitrators, and judges in different kinds of judicial system - is emphasized.
{"title":"The Law and Economics of Contract Interpretation","authors":"R. Posner","doi":"10.2139/SSRN.610983","DOIUrl":"https://doi.org/10.2139/SSRN.610983","url":null,"abstract":"Contract interpretation is an understudied topic in the economic analysis of contract law. This paper combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the four corners rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of extrinsic nonevidence. Gap filling is distinguished, and the relativity of interpretive doctrine to the interpretive medium - jurors, arbitrators, and judges in different kinds of judicial system - is emphasized.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"110 1","pages":"1581"},"PeriodicalIF":1.6,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67774951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. Article I, Section 7, Clause 3, requires presentment to the President of every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, Section 7, Clause 2 by labeling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Decided. Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.
{"title":"Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause","authors":"Gary Lawson","doi":"10.2139/SSRN.556789","DOIUrl":"https://doi.org/10.2139/SSRN.556789","url":null,"abstract":"The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. Article I, Section 7, Clause 3, requires presentment to the President of every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, Section 7, Clause 2 by labeling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Decided. Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"83 1","pages":"1373"},"PeriodicalIF":1.6,"publicationDate":"2004-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67762714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
[T]he science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns . . . . I. Introduction: Transnational Jurisprudence and the Challenge to Comparative Constitutional Theory "[I]rrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."2 These words of Justice Antonin Scalia are hardly reassuring to those of us who study and write about some of these practices, believing perhaps that the justice and his colleagues might benefit in some small way from what we have learned from our travels and reflection. To be sure, the fact that Justice Scalia's sentiment was voiced in the course of questioning the appropriateness of another Justice's invocation of foreign experience suggests that there may actually be some judicial receptivity to comparative insights and findings. But that only begs the question of why there should be. The question came up again on the last day of the 2002 Supreme Court term when, in his opinion for the Court striking down a Texas homosexual sodomy statute, Justice Anthony Kennedy cited several decisions of the European Court of Human Rights in support of the majority's holding in the case.3 "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."4 In response, Justice Scalia dismissed "[t]he Court's discussion of these foreign views" as "meaningless," but "[d]angerous dicta,"5 repeating the now familiar refrain that "this Court. . . should not impose foreign moods, fads, or fashions on Americans."6 Given the momentousness of the legal change wrought by the decision, this exchange received only a passing glance in the extensive commentary immediately following its announcement. It has since received more attention; Robert Bork, for example, has cited the references to foreign sources in Lawrence v. Texas (along with Grutter v. Bollinger)7 as episodes in an "absurd turn in our jurisprudence" that reflects the arrogance of power of the modern judiciary.8 "[E]ven Scalia at his gloomiest probably did not foresee [how a new Constitution] might be designed bit by bit from European, Asian, and African models."9 In a recent book, he connects this jurisprudential turn with one of his longstanding concerns, "the transnational culture war."10 Along similar lines, Ken Kersch discovered in the "seemingly benign references" to foreign sources "a vast and ongoing intellectual project," part of a "sophisticated effort to transform American constitutional law and its interpretation."" As a result, "[e]ventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered."12 These reactions may very well exaggerate the influence of external sources in the outcomes of these cases
法理学是人类智慧的骄傲，尽管它有缺陷、冗余和错误，但它是多年来积累起来的理性，它将原始正义的原则与人类关注的无限多样性结合在一起. . . .“‘世界共同体’的实践是不相关的，它的正义观念(谢天谢地)并不总是我们人民的。”大法官安东宁·斯卡利亚(Antonin Scalia)的这些话很难让我们这些研究和撰写其中一些做法的人放心，因为我们相信，也许大法官和他的同事们可能会从我们从旅行和反思中学到的东西中得到一些小小的好处。可以肯定的是，斯卡利亚大法官的观点是在质疑另一位大法官援引外国经验的适当性的过程中表达出来的，这一事实表明，司法上实际上可能对比较的见解和发现有一定的接受能力。但这只是回避了为什么会有这样的问题。在2002年最高法院任期的最后一天，这个问题再次被提了出来。当时，大法官安东尼·肯尼迪(Anthony Kennedy)在他对法院推翻德克萨斯州同性恋鸡奸法的意见中，引用了欧洲人权法院(European Court of Human Rights)的几项裁决，以支持多数法官对该案的裁决。3 .“在许多其他国家，请愿者在本案中寻求的权利已被接受为人类自由的一个组成部分。”作为回应，斯卡利亚法官驳回了“最高法院对这些外国观点的讨论”，认为这是“毫无意义的”，但却是“危险的指令”，并重复了现在熟悉的重复:“本院……不应该把外国的情绪、风尚或时尚强加给美国人。考虑到这一决定所带来的重大法律变化，在该决定宣布后立即出现的大量评论中，人们对这一交流只是匆匆一瞥。从那以后，它得到了更多的关注;例如，罗伯特·博克(Robert Bork)在劳伦斯诉德克萨斯州案(以及格鲁特诉博林格案)7中引用了外国资料，认为这是“我们法理学的荒谬转折”，反映了现代司法机构权力的傲慢。“即使是斯卡利亚在他最悲观的时候也可能没有预见到[新宪法]将如何一点点地从欧洲、亚洲和非洲的模式中设计出来。”在最近的一本书中，他将这种法学转向与他长期关注的问题之一“跨国文化战争”联系起来。沿着类似的思路，肯·克什(Ken Kersch)在对外国资料的“看似善意的引用”中发现了“一个庞大而正在进行的智力工程”，是“改变美国宪法及其解释的复杂努力”的一部分。因此，“最终，可能比我们想象的要早，美国宪法发展的性质和道路将彻底改变。”12 .这些反应很可能夸大了外部来源对这些案件结果的影响，而且可以说，它们夸大了国外资金注入的更广泛的法理意义。然而，它们确实解决了宪法理论在比较法中的作用这一重要问题。在推翻鲍尔斯诉哈德威克(Bowers v. hardwick)一案中有争议的裁决时，斯卡利亚大法官反对法院采用比较案例。该案保留了同性恋者(以及其他在亲密交往中实施鸡奸行为的人)双方自愿发生性关系的基本权利的地位，理由是所涉行为并非“深深扎根于这个国家的历史和文化中”传统。”这促使斯卡利亚大法官强调了“这个国家的”一词，并指出，与肯尼迪大法官意见的含义相反，鲍尔斯的多数意见并没有建立在“我们与更广泛的文明共有的价值观”的基础上。他自己的意思是，与劳伦斯不同的是，鲍尔斯的实力明显体现在其制作所用的当地原料上。．．．
{"title":"The permeability of constitutional borders","authors":"G. Jacobsohn","doi":"10.2307/j.ctvjsf46j.7","DOIUrl":"https://doi.org/10.2307/j.ctvjsf46j.7","url":null,"abstract":"[T]he science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns . . . . I. Introduction: Transnational Jurisprudence and the Challenge to Comparative Constitutional Theory \"[I]rrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people.\"2 These words of Justice Antonin Scalia are hardly reassuring to those of us who study and write about some of these practices, believing perhaps that the justice and his colleagues might benefit in some small way from what we have learned from our travels and reflection. To be sure, the fact that Justice Scalia's sentiment was voiced in the course of questioning the appropriateness of another Justice's invocation of foreign experience suggests that there may actually be some judicial receptivity to comparative insights and findings. But that only begs the question of why there should be. The question came up again on the last day of the 2002 Supreme Court term when, in his opinion for the Court striking down a Texas homosexual sodomy statute, Justice Anthony Kennedy cited several decisions of the European Court of Human Rights in support of the majority's holding in the case.3 \"The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.\"4 In response, Justice Scalia dismissed \"[t]he Court's discussion of these foreign views\" as \"meaningless,\" but \"[d]angerous dicta,\"5 repeating the now familiar refrain that \"this Court. . . should not impose foreign moods, fads, or fashions on Americans.\"6 Given the momentousness of the legal change wrought by the decision, this exchange received only a passing glance in the extensive commentary immediately following its announcement. It has since received more attention; Robert Bork, for example, has cited the references to foreign sources in Lawrence v. Texas (along with Grutter v. Bollinger)7 as episodes in an \"absurd turn in our jurisprudence\" that reflects the arrogance of power of the modern judiciary.8 \"[E]ven Scalia at his gloomiest probably did not foresee [how a new Constitution] might be designed bit by bit from European, Asian, and African models.\"9 In a recent book, he connects this jurisprudential turn with one of his longstanding concerns, \"the transnational culture war.\"10 Along similar lines, Ken Kersch discovered in the \"seemingly benign references\" to foreign sources \"a vast and ongoing intellectual project,\" part of a \"sophisticated effort to transform American constitutional law and its interpretation.\"\" As a result, \"[e]ventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered.\"12 These reactions may very well exaggerate the influence of external sources in the outcomes of these cases","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"82 1","pages":"1763-1818"},"PeriodicalIF":1.6,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68847652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under current legal doctrine, states have successfully asserted sovereign immunity from a variety of important bankruptcy provisions. Numerous commentators have argued that states undermine fundamental objectives of bankruptcy law by asserting immunity from bankruptcy actions. This article argues that, for the most part, sovereign immunity is consistent with basic bankruptcy policies. Bankruptcy law already reflects the fact that governmental units are not like private creditors by granting governmental units various priorities and regulatory exceptions. Because current bankruptcy law generally enforces non-bankruptcy property rights and entitlements, states can also largely determine their own priorities and privileges in bankruptcy by defining their entitlements under state law. Finally, to the extent that bankruptcy law should advance redistributive policies or protect non-ownership interests, it should defer to governmental entities, which are uniquely positioned to redistribute wealth and to protect the public good. It is true that state governments may undermine the goals of bankruptcy law if they impose unnecessary administrative costs on debtors' estates or if they refuse to follow important procedural bankruptcy rules. However, state governments will suffer political and/or economic costs of engaging in such behavior. Congress, in contrast, does not suffer the full cost of exposing state governmental units to bankruptcy actions. If states can assert or waive immunity from bankruptcy actions, they should strike a better balance between bankruptcy law and states' regulatory responsibilities than the current balance of these interests under the Bankruptcy Code.
{"title":"Federal Bankruptcy Law and State Sovereign Immunity","authors":"A. Feibelman","doi":"10.2139/SSRN.467300","DOIUrl":"https://doi.org/10.2139/SSRN.467300","url":null,"abstract":"Under current legal doctrine, states have successfully asserted sovereign immunity from a variety of important bankruptcy provisions. Numerous commentators have argued that states undermine fundamental objectives of bankruptcy law by asserting immunity from bankruptcy actions. This article argues that, for the most part, sovereign immunity is consistent with basic bankruptcy policies. Bankruptcy law already reflects the fact that governmental units are not like private creditors by granting governmental units various priorities and regulatory exceptions. Because current bankruptcy law generally enforces non-bankruptcy property rights and entitlements, states can also largely determine their own priorities and privileges in bankruptcy by defining their entitlements under state law. Finally, to the extent that bankruptcy law should advance redistributive policies or protect non-ownership interests, it should defer to governmental entities, which are uniquely positioned to redistribute wealth and to protect the public good. It is true that state governments may undermine the goals of bankruptcy law if they impose unnecessary administrative costs on debtors' estates or if they refuse to follow important procedural bankruptcy rules. However, state governments will suffer political and/or economic costs of engaging in such behavior. Congress, in contrast, does not suffer the full cost of exposing state governmental units to bankruptcy actions. If states can assert or waive immunity from bankruptcy actions, they should strike a better balance between bankruptcy law and states' regulatory responsibilities than the current balance of these interests under the Bankruptcy Code.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 1","pages":"1381"},"PeriodicalIF":1.6,"publicationDate":"2003-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How Juries Decide is a pathbreaking work of empirical scholarship based on experiments conducted with more than 8,000 jury-eligible citizens and more than 600 mock juries. Its basic premise - that cognitive flaws in human decisionmaking, especially those affecting the translation process by which moral judgments are transformed into dollar awards, lead to erratic and unprincipled punitive damages awards - has already had an important impact not only on scholarly literature but also on judicial decisionmaking in high profile suits. This Review offers a methodological, doctrinal, and institutional critique of this widely influential study, with particular emphasis on the discrepancies between the empirical data presented and the policy reforms advanced - which include, at the extreme, a call to banish the jury from punitive damages decisionmaking. The Review examines critically the authors' conclusions that jurors are intuitive retributionists and unable (or unwilling) to follow instructions based on the non-retributive optimal deterrence theory of punitive damages. More fundamentally, the Review challenges the authors' rigid separation between retributive-based punitive damages, which are linked to jurors' moral evaluations, from remedial-based compensatory damages (including pain and suffering), which are not. Although the authors fashion a seemingly narrowly tailored attack on jurors' assessments of punitive damages, in fact they raise fundamental questions about the civil jury system as a whole, questions that are in no relevant way confined to punitive damages. Conversely, to the extent that there is any non-retributive component to punitive damages, their attack upon the jury's ability to assess punitive damages might not be warranted across the board. What emerges is the distinct possibility that a system of non-retributive punitive damages might survive the authors' empirical challenges. Finally, How Juries Decide pays too little attention to institutional context and wholly overlooks potentially effective reforms within the existing jury system, such as those that take into account anchoring effects and regional differences among jurors - reforms that are clearly supported by their empirical findings.
{"title":"Punitive Damages: Should Juries Decide?","authors":"C. Sharkey","doi":"10.2139/SSRN.453240","DOIUrl":"https://doi.org/10.2139/SSRN.453240","url":null,"abstract":"How Juries Decide is a pathbreaking work of empirical scholarship based on experiments conducted with more than 8,000 jury-eligible citizens and more than 600 mock juries. Its basic premise - that cognitive flaws in human decisionmaking, especially those affecting the translation process by which moral judgments are transformed into dollar awards, lead to erratic and unprincipled punitive damages awards - has already had an important impact not only on scholarly literature but also on judicial decisionmaking in high profile suits. This Review offers a methodological, doctrinal, and institutional critique of this widely influential study, with particular emphasis on the discrepancies between the empirical data presented and the policy reforms advanced - which include, at the extreme, a call to banish the jury from punitive damages decisionmaking. The Review examines critically the authors' conclusions that jurors are intuitive retributionists and unable (or unwilling) to follow instructions based on the non-retributive optimal deterrence theory of punitive damages. More fundamentally, the Review challenges the authors' rigid separation between retributive-based punitive damages, which are linked to jurors' moral evaluations, from remedial-based compensatory damages (including pain and suffering), which are not. Although the authors fashion a seemingly narrowly tailored attack on jurors' assessments of punitive damages, in fact they raise fundamental questions about the civil jury system as a whole, questions that are in no relevant way confined to punitive damages. Conversely, to the extent that there is any non-retributive component to punitive damages, their attack upon the jury's ability to assess punitive damages might not be warranted across the board. What emerges is the distinct possibility that a system of non-retributive punitive damages might survive the authors' empirical challenges. Finally, How Juries Decide pays too little attention to institutional context and wholly overlooks potentially effective reforms within the existing jury system, such as those that take into account anchoring effects and regional differences among jurors - reforms that are clearly supported by their empirical findings.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"82 1","pages":"381"},"PeriodicalIF":1.6,"publicationDate":"2003-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Precommitment issues in bioethics.","authors":"John A Robertson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1849-76"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914697","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Precommitment: a misguided strategy for securing death with dignity.","authors":"Rebecca Dresser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1823-47"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Precommitment in bioethics: some theoretical issues.","authors":"Dan W Brock","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1805-21"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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