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2018.6.26
昨日阅读5.5小时  累计阅读394小时。

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阅读1小时，总计540小时，第507日。

阅读《法律的经济分析》至30%

比较一下以下两种处理方法的激励效果：允许摄影师取得全部损失的赔偿或将他的追索限制在胶卷价格范围内。第一种方法很少或不产生在未来避免类似损失的激励。摄影师不会采取任何预防措施，他会对是成功地完成他的任务还是取得摄影不成功的全部赔偿采取满不在乎的态度。胶卷厂商可能也不会采取更多的预防措施，因为他无法认定谁的胶卷拍摄花了极大的成本。而只有当许多人的胶卷拍摄都花了很大的成本时，他才有可能花费成本对所有的胶卷都采取更为谨慎的保护措施。相反，第二种方法则可能使摄影师采取立即表现出其低成本和高效率的预防办法：使用两个胶卷或当他将胶卷送去冲洗时要求进行特殊处理。

如果从开始起具体规定就是很明确地旨在给予违约受害者比他预计的违约实际损失或违约人所得要多得多的赔偿，那么这就是一种惩罚条款（ penaltyclause ），并且是不能得到法律强制执行的。

假设我知道我将履行契约，但我难以使他人确信这一事实。由于订立了惩罚条款，我就传递了关于我自己对我履约可靠性估价的可信信息，而这些信息在决定什么条款是我的责任时是有用的。

在惩罚和没收定金（ forfeiture ）之间存在着三方面的差异：（ 1 ）执行没收定金无需法律诉讼，它是一种法律制度实施成本较低的救济。（ 2 ）没收定金制约的一方当事人通常是付款人，与履约方相比，付款方一般不大可能作出非故意的违约。（为什么具有这种相关性呢？）（ 3 ）由于没收定金受限于被没收定金方当事人已交纳的款项，所以它不可能对他有毁灭性的影响。第二、三点表明，没收定金不太可能是诈欺和胁迫的法律后果，诈欺和胁迫的法律后果更可能是惩罚。

法律没有允许受约人因为要约人的轻微违约而免除其自己的履约。法律默示性地将受约人对要约人自助的成本和受约人的损害赔偿进行了比较，并拒绝在前者成本实质上超过后者的时候采用自助。因而，我们希望自助应被允许在可替代货物情况下比在定制货物情况下得到更为经常的运用。

如果一个法院能理智地确信会已存在交易并知道什么肯定是其必要条款（医生尽其最大努力，而病人对已作出的那种治疗向医生支付价金），那就没必要着急在事后由双方当事人签订契约了。

医生医治不省人事的人应得到报酬，以补偿他们面临的神智不清的人可能真的不需要（由此而不要求缴费）其服务的风险。

一个人站在我的窗下演奏优美的小提琴乐曲，他在奏完后就来敲我的门而向我收取他演奏的报酬。虽然我欣赏了他的音乐，但我还是拒绝为之支付任何费用。法院将拒绝小提琴演奏者的收费请求，不论这种收费可能显得多么有理由。法院的理由是，虽然小提琴演奏者使我受益（并且他没有无偿服务的目的），但他的做法是过于殷勤了。如果用经济学术语表达这一法律术语，这就是指他在自愿交易成本可能是很低的情况下向我提供了一种我所不指望的享受。在这样的情况下，法律坚持认为应遵守自愿原则，而这样做是有其坚实的经济学基础的。

三方面的具体特征使婚姻法和契约法区分开来。初看起来它们好像与上一章的观点相左并在相互之间也是不相容的。第一，当事人并没有自由设定契约期限或通过双方同意而自由解除契约；期限是寿命，（传统法律中的）解除原因很像大学中的任期契约（ tenure contract ）解除原因。第二，尽管婚姻契约是一种长期契约，但其违约制裁要比一般契约的违约制裁更为严厉。如果丈夫抛弃妻子（或反之），那他不仅必须要继续扶养其妻子（这是对必须支付损害赔偿的类推），而且还不能与任何其他人结婚，除非她同意离婚；这好像是一个违约者可能被禁止在他余生之内缔结另一契约以替代他违反的契约。第三，尽管他们的关系具有封闭性，但如果配偶在婚姻期间有争议，法院一般不会干预其争端的解决；而配偶双方将不得不努力自行解决。

一个相关的观点是，寻求时间越长，配偶的平均年龄就越大；而越成熟，就越有经验而不可能像年轻人那样犯错误。所以，增加离婚的难度或使之不可能离婚则有可能促进幸福的婚姻！而且，如果人们知道他们被领入一种关系，他们就会设法消除他们间的不和，这样就减少了用司法手段解决争议的必要性。

至于通奸，人们注意到，常常是妻子的单方面通奸行为构成了离婚的理由，而丈夫为了使妻子有权提出离婚而成为一个习惯性通奸者。这一规则的经济解释是，妻子的通奸对丈夫造成的成本要比丈夫的通奸对妻子造成的成本大，即使通奸的纯粹感情成本——当他或她发现通奸时由于名誉受损的配偶的耻辱和暴怒——对配偶双方都是一样的（但真是这样吗？）。如果妻子有通奸行为，那么她就会怀孕，而这孩子并不是她丈夫的，而且由于妇女的怀孕能力是明显有限的，所以如果丈夫想要他自己血缘的孩子，那么他的婚姻收益就明显地受到了损失。但丈夫的通奸不会减少妻子所怀孕的孩子数量，也不会减少他给予每个孩子的供养，所以妻子的婚姻收益不会受损，至少就孩子而言是这样的。但是，如果丈夫是一个习惯通奸者，那么他就可能对其妻子和（合法）孩子的需求过于不关心，从而将对其妻子产生成本，这成本相当于妻子的单独通奸对丈夫产生的成本。

有些亚洲国家非常关注其人口过剩问题，他们试图限制每一个家庭的孩子固定数量，在中国只准生一个孩子。这种方法明显是无效率的，因为各家庭在其生产孩子方面的效率是不同的。生产同样质量的孩子， A 家庭生第二个孩子的成本就比 B 家庭生第一个孩子的成本低。同样的中国人口总增长率（正或负），就可以通过向每一家庭发放生一个孩子的许可并允许其转让而非不允许其转让（现行政策），从而降低成本。

特别是在基督教和穆斯林社会，国家不仅承担了管制婚姻的责任，而且承担了直接管制（或试图管制）性行为的责任——即使这种性行为是有行为能力的成年人之间双方同意的。例如，美国的许多州依然将未婚男女（或一方为未婚）间的性行为（ forrrication ）、通奸和同性性交认定为犯罪（虽然这些法律很少实施）；除内华达州的一些县外，美国所有的地方都将卖淫认定为犯罪；销售赤裸裸的黄色作品在名义上也是非法的。

禁止未婚男女性行为和通奸的法律在当今的社会中是有害的，因为非婚性交的成本已经下降了。有效的避孕措施已降低了性（尤其是非婚性行为，为什么？）成本。由于妇女逐渐外出工作，其丈夫对其保持监视的成本就上升了，这意味着被发现的几率会降低。另外，寻求非婚性行为的成本由于妇女与男子一起工作而下降。随着婚姻收益的下降，更多妇女的未婚时间将延长，所以非婚性伙伴的群体将更大。而且单身母亲身份对妇女的成本将下降，因为现在的妇女有市场收入，她们可以用它来购买扶养孩子所需的市场商品。

在亚当斯诉巴洛克（ Adams v ． Bullock ）一案中，当一个 12 岁的男孩过一座架过被告电车轨道的桥梁时，挥动手臂去敲击在桥上面的 8 英尺长的电线，电线与电车的架空线连着，而架空线在轨道上面桥下面，结果是电击伤害了那起诉的小孩。法院在该案中支持了被告。因为几率（ P ）是很低的，任何过桥的人都不太可能去摸电线。而预防成本（ B ）却是很高的，法院用强烈的经济学观点评述了电灯线和电车空架线之间的差异。

昨日阅读4小时，累计阅读时间173小时。20180626

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挑战第一百二十天   读12页书，完成当日目标

昨日阅读时间1小时，累计阅读时间166小时。

2018-06-26

昨日阅读1小时，累计阅读316小时

1. 今天阅读到的有价值的全文内容链接:
Transformation — Risks and Rewards
https://www.pmi.org/learning/tra ... rojectified-podcast

2. 今天阅读到的有价值的内容段落摘录:
Kevin Murphy:
To change to something different. for me when you use the transformation word you're implying that something significant is going to take place. That at the end of this journey, this process, that the organisation will be different in market and significant ways to what it was when you started. There may be many reasons to embark on transformation, but at the end you've got to look back and say "we've made a difference".
Yeah, I mean transformation can come from a lot of, of different sources. you know top on the list today would have to be digital and the implications and impact that digital is having and the disruption of, of businesses. So looking forward and, you know, not seeing clearly, or maybe perceiving a threat or even being in fear, you know, driving, transformation. But it's also opportunity. transformation could be driven by merger and acquisition. so two organisations are gonna come together to materially change the value that they collectively, create. so most sizeable, merger integrations, have a transformation, component or transformation, feel, to them. transformation can be driven by just business circumstances. you know the need to radically change the, the upside on kind of revenue generation. Or to take significant cost, out of the business. so many different sources, but all leading to that very significant change. I, I would say the other characteristic is of transformations are that they tend to touch all aspects of the business. so it's, it's not fixing or improving or changing an area of business, it is touching, all parts, front, back, you know, all, all round. Which again contributes to that, it's when you look back at the end it's different.
And let me start with, you know, how common is transformational. most companies do not go through many transformations in their, their history, they're, they're big draining things. So, it's, it's not something you undertake on a whim, there's got to be a fairly strong, you know, case for change, to dive, into it. they're, they're, they're not, they're marathons not sprints, so when you're talking about transforming an organisation it's measured in years not weeks. and because of that, most executives, most business people and most project, professionals probably don't get an exposure to many of them in their careers. And in fact, tho, those who have successfully led and guided and contributed to transformation, are in strong demand. because it's just not many people who can put one let alone two or three of those, on their resume. and that's, it, as I said, to, to have that is a great value on the resume but it's also a tremendous experience for the individual. the learning that takes place during transformation is, you know, substantial. so it, it's just, you know, if, if you have the opportunity it is great to get involved. and not only will the organisation be changed, but you get changed by the process as well, by the experience.
Yeah, if the latter were true it would be sad because you'd probably have a very frustrating experience. The, but, but, but that's why I mentioned that the, the experience, the, being part of a transformation changes you as well as the, as the company. Because I believe very strongly, that it makes a better all round leader, business person, contributor, to the organisation that, that you're in. The, the other side of transformation is, you know, successfully done, you know, it creates a powerful business entity on the, on the other side. And, I, I don't see many people who having gone through the transformational experience are looking to go somewhere else to create another transformational experience. What I see is them getting excitement and energy from the new business that they've created. And they want to apply what they've learned in more and in deeper ways. you know, to keep that happening.
Absolutely. And if you've been part of the core team, in driving this, you, you now have those relationships, across the organisation, as well. so there's a, there's a real kind of bonding that takes place. you know, in, in the process and, you know, you just want more.
There's huge risk in the transformation. you know, they are the most challenging of usually situations and opportunities. to, you know, to, to address. We did a piece of, of research a few years ago. We talked to, three hundred plus companies that had gone through transformational, scale of, of change. And we asked them, basically a number of questions, but one of the key questions was, did you achieve what you set out to achieve? What was the value upfront you said you wanted to generate? What was the result, the outcome, the realisation? And did you deliver on that? and the, the answers are pretty sobering. because the number of companies that either delivered on or exceeded that promise was twelve percent. so very small.
Let me give you two other numbers. so of those that weren't in the twelve percent, thirty eight percent delivered less than fifty percent of the value, that they promised up front. Now we look at those thirty eight percent and we believe there was probably something flawed in what they set out to do or how they set out to do it. And, you know, most likely it was the wrong change, you know if you're hitting kind of that low, on delivery. The interesting number for us is the number that remains. 'Cause it's fifty percent. they got at least fifty percent, of the value but they didn't deliver, the the full value, that was out there. And by our definition when we looked at them, achieving the value was within their grasp. They just didn't play the game at the level that was necessary, to succeed. And, and we labelled it mediocre. they settled for mediocrity. and, you know, as I said transformation is not easy. You have to be as a leadership team, as a, an organisation, as a company, you have to be pretty dedicated, to, to, to take it on and to deliver, against it. And we're saying is, half the people who get into this, do not have that level of commitment, energy, you know, whatever label you put on it, to make it happen. And, and you know the one I, the one I think it isn't is, it's not ability. I believe the ability and the skills are available, it's the attitude. It is the, resolve to do whatever it takes, to get you there, that's, that's missing. and it really, you know, in terms of the, the, the role and people we're talking about, it's, it's the willingness to up your game. and I gotta do what I've done before and that's worked on, you know, the average incremental project. Or am I gonna step into this and really up my game to deliver?
So by start let me, just be clear, you've gotta bring a good game and you've be able to bring, your best game. So it's not like, you'd pick anybody off the street and they can go, you, you need good, people. but the, you know the, the, the energy and the, you know, kind of doing what it takes, is a, it can be a challenge at all levels. But, but fixing, it, or ensuring that it's place, is a top down. It is the, you know the, the leadership, team, and the alignment of that team and the, the commitment of that team, that's, that's critical. you know, here, here at Bain I, I run a centre of excellence in what we call co-creation. And it is, you know, how we get individuals and groups of people working together in, you know, a constructive way where the sum is greater than the, the total is greater than the sum of the parts. and, you know, they truly outstrip even what they expect, of themselves. And it's creating the environment and the interactions where, where that is possible. And, I spend a lot of time working with senior teams and large groups of leaders in organisations, you know, trying to get them, to that place. And one of the most frequent comments I hear after we, we run some of these sessions with, senior teams is somebody around the table says "we never talked to one another like this" you know today has been such a different experience for us. And we say, "well what was different about it?" "We talked to each other". You know, we didn't come in with our own agendas and our own, you know, list of topics and you know, you know, focus on a, a very fixed and limited, set of things, we actually stepped back from the business as it is today and we engaged, each other. and I'm, I shouldn't be surprised at, you know, 'cause I've heard it so many times, but it still catches me, catches my attention every time I hear, somebody say it. And it is, it's a very challenge to run a business, you know, particularly a large, enterprise. And, you know the conversation tends to get silo-ed. and pulling people out of that. And I mean, and that's the beginning. We, we usually start, very deliberately and explicitly with the senior team and getting them to have the conversations they need, need to to be in it together.
So, I, I'm gonna butcher a quote from, Dee Hock. Dee Hock was the founder, inventor, CEO of Visa International. Basically the guy who invented the credit card system that we all use, today. fantastic leader and, one of the things he said, and I won't get his words exact but he said, he goes, you know, it is the future that should have our attention and, you know kind of consume kind of the best of us but it's seldom does in the kind of stresses and strains of daily life, you know, we as I said, it is a lot of work to run a business day by day. And without some external influence, most leadership does that and they do it successfully. I mean it's part of what got them in the position, they're in today. and, and the need is to get them out of that, to create the space for them to have the conversation. you know, not often easy inside an organisation and several levels down to create that. But, but you don't, you don't have to start with the leadership, you can start by creating these opportunities among, you know, managers and VPs lower in the organisation to build the reputation and the experience, in doing so. you know, I mentioned, you know, creating the space for that. I think of it as three spaces, that you, you've got to pay attention to. There's physical space, there's mental space and there's emotional space. And, you know, physical space is, you know, when I do this, I like to get people out of the day to day environment. not our usual conference room or whatever meeting room, or board room that we sit down to talk in. Because that has associations with the conversations that we always have there. If I want to get you to have a different conversation, I actually like to put you in a different space. Just so the, the space supports you in kind of generating a different, dialogue. Could be somebody's home, it could be a space that you rent, preferably not a ball room at a hotel at the airport, my least favourite places to have these conversations.
In the, actually in today's kind of mobile worker, environment, there are actually a lot of great spaces that you can go online. I, I use Peerspace, for instance to just find locations to have, these meetings. The second I said is, is, is mental space and that's creating the, environment for people to have the dialogues that they need to have. And I say, everybody comes to these meetings from the to do list and the problem list and the challenges, that they were just facing. So it's, you know, kind of creating an environment to separate them from that. you know we do these inclusion exercises. which are about warming people up for the conversation they're going to have. But it's also about trying to separate them from the, the problems of, that, that they all brought into the, into the room. And, again many ways, you can do it but it's kind of setting people up, for the right, conversation. And the third one, as I said, is, is emotional space. you know, if these people are mid or senior managers in, you know, a substantial organisation, as I said, there, there's a lot on their plates and a lot kind of in their heads, when they, you know, kind of come, to the table. but not only that, there was a, you know, a tonne of work going forward for the next, you know, three, six months to the end of the year, that's already, kind of occupying their time and they haven't encountered it, yet. So part of what, you know, you're trying to do in that time, you know, with the team is, is to generate some new energy and enthusiasm and opportunity. You wanna get them excited and committed, to something. And, I talked about these three things as, as spaces and the reason I think of them that way is, what I've experienced over the years is if you get a good group of people into the right space, having the right conversation, together, it's kind of sit back and let them go.

3. 今天阅读的自我思考点评感想                        

1) Transformationcan be driven by merger and acquisition.

2)The learning that takes place during transformation is substantial.

昨日阅读2小时