Judicial independence and economic freedom in the US states

This article addresses the extent to which differences in judicial independence across US states influence economic freedom by using the Fraser Institute’s Economic Freedom of North America Index. Overall, the results suggest that, as judicial independence increases within a state’s court of last resort, so does a state’s overall economic freedom score, along with each of the subcomponent index scores. These findings add important nuances to the literature and provide opportunities for future research.     

公司僵局状态下的司法介入探析

作为封闭公司特有现象的公司僵局，可以通过司法介入打破。本文在论证司法介入打破公司僵局的理论依据的前提下，分析了美国的相关立法例，对“以购买替代解散”的补救规则进行了阐释，对股东解散请求权的行使以及附随的清算义务等进行了分析。     

论法官能动司法的功能和规制

能动司法已成为理论界和实务界讨论的热点。司法能动主义的源头在美国，与其联邦最高法院的司法实践紧密联系。在中国，能动司法是由决策者自上而下、回应社会需求而提出的，并贯彻到各级法院的司法实践活动中。从现有的理论研究成果来看，关于能动司法的概括或解释是多元化的。在我国司法大改革的背景下，法官发挥司法能动性有利于填补法律缺陷、提高司法效率、实现司法公正和树立积极主动、司法为民的基本理念。但是，也必须正视法官能动司法的两面性，可以通过完善立法、构建司法能动制度和推进法官职业化建设来规制法官能动司法的实施，以保障司法公正的最终实现。     

论人民法院对行政立法的审查

人民法院是中国的审判机关,同时也行使国家司法监督权。人民法院对行政权的监督主要是通过司法审查的形式来实现的。但目前在中国行政立法享有司法豁免权,这就使行政法治成为一句空话。从美国的司法实践来看,将中国的行政立法纳入司法审查的范围是十分必要的。要想真正实现行政法治,首先应在立法上明确规定人民法院对行政立法的司法审查权;其次要明确司法审查中人民的审查要件、审查对象及审查标准;最后要提高法院的在司法审查中的地位和司法上的独立性。     

审判独立与市场繁荣——以高院院长异地交流为实验的研究

司法部门享有独立的审判权不仅有助于约束和监督政府行为,避免政府对市场的过度管制和干预,而且有助于约束市场主体在事后的机会主义行为,进而有益于市场经济的成长和繁荣.本文以2008年中国各省高院院长异地交流作为刻画地方法院审判独立性提升的一次自然实验,倍差法估计发现高院院长异地交流显著促进了经济的市场化进程,一系列安慰剂及...     

The Role of the Judiciary in the Public Decision‐Making Process

Empirical work on the relationship between political corruption and the design of public institutions suggests that the structure of judiciaries is an important determinant of corruption. This study develops a simple political economic model to investigate the role of judicial oversight in the policy‐making process for corruption deterrence, focusing on two dimensions of quality of the judiciary, namely efficiency and integrity. Our analysis explicitly accounts for the possibility that, while being independent of the political authority, the judiciary itself may be vulnerable to pressure from special interests. We study endogenous policy‐making under complete information and provide general conditions for the existence of deterrence (zero‐bribe) equilibria. In particular we show that preserving the independence of judiciaries in corrupt societies proves crucial to the existence of corruption‐deterrence effects.     

Toward global checks and balances

The rapid growth and importance of intergovernmental coordination in the regulation of markets, transportation and communication, the environment, and national security poses numerous challenges for democratic accountability within participating states. Direct public participation in the intergovernmental regulatory bodies is generally modest or absent. Information regarding their deliberations is limited. And the multiple oversight mechanisms and supervisory processes that exist at the domestic level of developed democracies that can scrutinize intergovernmental regulatory decisions tend to be lacking. This lack of accountability raises legitimacy concerns, the most prominent of which is the fear executive branch officials will delegate controversial policy decisions to intergovernmental bodies in order to escape democratic deliberation. In this paper we survey the ways that different review venues (other international institutions and national courts) are attempting to cope with these accountability related issues: we argue that national courts may prove to be the most effective venue for promoting democratic accountability. This is not because they are more reliably representative of their domestic constituency or possess a more cosmopolitan perspective than the bodies whose decisions they are reviewing. Rather their relative advantage lies in: (1) the increasing acceptance on the part of domestic courts that inter-judicial coordination is a prerequisite for their continued ability to fulfill their judicial review function; and (2) the visibility that the decisions of these courts possess. Acting together these two forces have the potential to foster greater transparency and public deliberation than most rival venues.     

It's easier to contract than to pay: Judicial independence and US municipal default in the 19th century

It is well established in the literature that an independent judiciary can act as a signal of credibility by a sovereign state and as a guarantor of creditor rights. However, to date there has been little systematic work analyzing how an independent judiciary reacts to fiscal stress and public-sector default. This article addresses that very question by evaluating how and if judicial independence affects default rates using US municipal data through the nineteenth century. Overall, the results do indicate that greater judicial independence is associated with a significantly lower likelihood of default. This channel largely occurs through the method by which a member of a state's court of last resort is selected (either appointment or popular election) and term length.     

环境公益的司法救济

保护环境公益是环境保护最重要的方面。在目前的中国,环境公益受到损害主要依赖于行政机关的救济。然而,仅仅依赖行政救济不足以保护环境公益,我们还需要司法救济。环境公益的司法救济途径有二种,即环境民事公益诉讼和环境行政公益诉讼,二者在诉讼目的、诉讼主体、举证责任、诉讼效果等方面具有诸多的相同点和差异,比较它们的异同对于我国构建环境公益诉讼制度具有积极的指导意义。     

Court of Public Opinion: Government Accountability and Judicial Independence

Using a simple model of policy making in a system characterizedby formal separation of powers, judicial dependence on governmentsupport, asymmetric information between voters and the government,and political accountability of the policy branch, I show conditionsunder which rational voters force the government to cede powerover legislative decisions to the courts. Specifically, thepublic uses its ability to hold the elected branches of governmentaccountable to enforce a judicial veto when judicial oppositionto legislation provides more reliable information to votersthan government support for legislation does. The model thusprovides a theoretical justification for, and suggests importantlimits to, the common assumption that disregard for judicialdecisions is politically costly for elected politicians. Themodel also demonstrates how other observed patterns in judicialpolitics—including judicial rubber-stamping of governmentdecisions and government "passing the buck" to courts—canarise as equilibria in the same simple framework.     

Bureaucratic Decision Costs and Endogenous Agency Expertise

This article analyzes the effect of the cost that an agencymust incur to adopt a new regulation (the "enactment cost")on the agency's incentive to invest in expertise. The effectof the enactment cost on agency expertise depends on whetherthe agency would regulate if it fails to acquire additionalinformation about the regulation's effects. If an uninformedagency would regulate, increasing enactment costs increasesagency expertise; if an uninformed agency would retain the statusquo, increasing enactment costs decreases agency expertise.These results may influence the behavior of an uninformed overseer,such as a court or legislature, that can manipulate the agency'senactment costs. Such an overseer must balance its interestin influencing agency policy preferences against its interestin increasing agency expertise. The article discusses the implicationsof these results for various topics in institutional design,including judicial and executive review of agency regulations,structure-and-process theories of congressional oversight, nationalsecurity, criminal procedure, and constitutional law.     

National Judicial Power and the Dormant Commerce Clause

We develop a game in which a court monitors states as they regulatetrade among themselves. Contrary to commentators who see SupremeCourt oversight of state burdens on interstate commerce as theproduct of a powerfully ascendant court, we argue that the "dormantCommerce Clause" (DCC) originates as the strategic product ofan institutionally weak court. We provide three lines of argument.First, we refute the notion that merely observing the courtruling against state governments and those governments complyingwith its ruling is evidence of judicial power. Second, we showthat the equilibria of our "weak court" model directly impliesthe doctrinal contours of the DCC while the ascendancy hypothesisdoes not. Finally, we provide evidence that the court announceda weaker version of the DCC doctrine than sincerely preferredby pivotal justices on the court. Our arguments invite a revisedunderstanding of the role of the court in the development ofthe American political system.     

注册会计师执业责任鉴定人五个问题分析

本文认为,现阶段发挥注册会计师执业责任鉴定人在法律诉讼的专家证人作用更有利于保护注册会计师的合法权益。鉴定人应具备相应的资格和能力,享有和承担法律赋予的权利和义务。对鉴定人错鉴责任的追究上,应以行政责任为主,刑事责任、民事责任为辅。     

Judicial error and cooperation

Cooperation can be induced by an authority with the power to mete out sanctions for free riders, but law enforcement is prone to error. This paper experimentally analyzes preferences for and consequences of errors in formal sanctions against free riders in a public goods game. With type I errors, even full contributors to the public good may be punished. With type II errors, free riders may go unpunished. We find that judicial error undermines cooperation and that the effects of type I and II errors are symmetric. To investigate their relative (dis-)like for error, we let subjects choose what type of error to prevent. We find that subjects prefer type II over type I errors. However, the strength of preferences for preventing type I errors is fully in line with a motive to maximize income and does not indicate any additional psychological or fairness bias against type I errors.     

Resurrecting Lochner: A Defense of Unprincipled Judicial Activism

Lochner v. New York, 198 U.S. 45 (1905), stands as one of theSupreme Court's most reviled decisions. We challenge the criticalconsensus against Lochner and provide a defense, albeit a contingentdefense, of "unprincipled" judicial activism. To do so, we developa game-theoretic model of judicial–legislative interaction.We use the model to compare outcomes generated in a system oflegislative supremacy to outcomes generated in a system in whichjudicial review is provided by a legally unprincipled, activistjudiciary. We show that judicial review, even when providedby an activist, politicized judiciary, can promote importantconstitutional values and improve legislative quality relativeto a deferential judiciary. In doing so, we identify an important"passive" component to the effect that judicial review has onlegislatures and on legislation. Finally, we demonstrate thatthe addition of other institutions and constraints on judicialbehavior amplify the beneficial effects that judicial reviewprovides to the legislative process.     

From Judicial Sovereignty to Collective Democracy: The Development of J.R. Commons’ Perspective on Progressive Institutional Change

Abstract:

This article clarifies the significance of “collective democracy” in the works of John R. Commons by comparing it with “judicial sovereignty” in terms of its contribution to “progress.” We can thus answer two issues that Paul D. Bush does not clearly address: (i) what setup for policy formation contributes to progress and (ii) what is the role of economists within a collective democracy? Based on the comparison, the answer to the first question is collective democracy, and regarding the second question, the roles of economists as both economists and “institutional” economists are extrapolated.     

试论坚持和完善国有资本经营预算制度的相对独立性——基于政策文件的解读与思考

本文基于《国务院关于试行国有资本经营预算的意见》等文件,对国有资本经营预算制度的相对独立性进行解读,分析其在政策目标、收入管理、支出管理和工作机制等方面与公共预算的区别,并提出正确认识国有资本经营预算相对独立性需要厘清的几个观念,即"有限政府"不等于"有限国企"、国有经济不等于低效经济、预算支持不等于扭曲竞争、注重效率不等于忽视公平;文章最后提出坚持和完善制度相对独立性需要进一步完善相对独立的政策目标体系、预算收支科目体系、预算支出项目管理模式等。     

Judicial review and the power of the executive and legislative branches

The legal system can affect what policies a government can implement. In particular, when there is separation of powers, the strength of the judiciary to review and overturn actions of the executive and legislative branches can affect such things as how much redistribution these policy-making branches can do. Surprisingly, having judicial review helps the policy-making branches—the stronger is the judiciary, the more redistribution they are able to do. This occurs because the policy-making branches must make promises on and off the equilibrium path to individuals in order to make redistribution possible. However, in many circumstances, the government wants to renege on these promises, either to do more redistribution than promised or to not carry out severe threats against any individuals who lied. Judicial review can prevent reneging on these promises, thus making them credible.We develop this in the context of an optimal income tax model with a finite number of individuals where the government knows the exact distribution of types but not which individual is of which type. In this finite model, the government can detect misrevelation by even a single individual so that an individual׳s taxes can depend not just on one׳s own actions but also on others’ actions. Piketty (JET, 1993) showed that the government could implement any full-information Pareto optimal allocation if the government could commit to its announcements, even to infeasible allocations in circumstances after some individuals misreveal. We derive the sequential equilibrium allocations when individuals reveal their types by simple announcements when feasibility on and off the equilibrium path is imposed. Increasing the degree of judicial review expands the set of achievable allocations on the full-information utility possibility frontier. We also relate the different possible legal rules to different solution concepts in game theory.     

Race,Affirmative Action,and Women's Employment in US Highway Construction

This paper analyzes employment hours, supplemented by interview data, from large highway construction sites in Boston, Los Angeles, and Oakland in the 1980s and 1990s. This study suggests that affirmative action positively affects the employment of women in construction and where there is more pressure, there are strongr results. Second, white women and women of color tend to work in trades that reflect the existing racial hierarchies among men. Therefore race as well as gender should be reflected in the design and measurement of the impacts of employment programs. Community organizing, advocacy for women and men of color, judicial oversight and positive efforts by unions and employers are still critical to bridging the gap between policy intentions and outcomes.     

Ukraine's unconsidered losses from the annexation of Crimea: What should we account for in the DCFTA forecasts?

In March 2014 Crimea unilaterally declared its independence from Ukraine and joined the Russian Federation. The separation of a part of a state's territory and economy is an interesting matter to examine. The economy of Ukraine has not only shrunk, but also changed its structure as Crimea had a quite distinct production pattern compared to the rest of Ukraine. Moreover, policy measures initialized before the separation may have different effects once applied only to a part of the former economy. This paper proposes a strategy to model the separation of part of an economy and its inclusion into another country and applies this strategy to the case of Crimea, Ukraine, and Russia. Having constructed a model for the new geographical and economic situation, we reinvestigate the possible effects of a Deep and Comprehensive Free Trade Agreement between Ukraine and the EU and compare the results for the situation with Crimea as part of Ukraine. We find that the annexation of Crimea leads to severe economic losses for Ukraine which are partly overproportional compared to Crimea's economic size. These negative effects can be compensated by implementing the DCFTA with the EU as we also show in our model results.