Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Policy change and health care research

Explaining policy change is one of the most central tasks of contemporary policy analysis. Reacting to overly rigid institutionalist frameworks that emphasize stability rather than change, a growing number of scholars have formulated new theoretical models to shed light on policy change. Focusing on health care reform but drawing on the broader social science literature on policy and politics, this article offers critical perspectives on the institutionalist and ideational literatures on policy change while assessing their relevance for analyzing change in contemporary health care systems. The last section sketches a research agenda for studying policy change in health care.     

Symposium overview: Accelerating the conversion of science to technology

Conversion of science to technology typically represents a transition across cultures, organizations, time scales, perspectives, personal motivations and philosophies. The purpose of this special issue is to address the specific problem of efficient and effective conversion of science to technology. This special issue will focus on the ideas, concepts and principles (for improving the science to technology conversion) that can be derived from past and present practices, and will complement recent special journal issues on Research Impact Assessment (Evaluation Review, February 1994) and Performance Measures for Government Sponsored Research (Scientometrics, July–August 1996). The theme that permeates this special issue is that efficient science to technology conversion is a contact sport. It is critical that interested parties (from each side of the science-technology barrier) develop early awareness of, and subsequent early involvement in, each other's culture, problems, and potential to maximize opportunities for removing impediments to successful transition. Awareness and involvement can be greatly enhanced through the use of the latest findings and tools resulting from advances in information science and technology. The various papers in this special issue present concepts and successful examples for enhancing mutual awareness and deepening the breadth and period of involvement that eventually result in transition obstacle removal.     

FACE Facts: Why Human Genetics Will Always Provoke Bioethics

Some people dispute the relative importance of issues in genetics and biotechnology for the future of bioethics, either because they think the problems are time-limited or because they give priority to issue of human rights and social justice in health care. In fact, the special historical standing of genetic issue s in bioethics reflects four overlapping sources of moral sensitivity which ar inherent in the stories that genetic science tells and raise paradigmatic justice concerns: the implications of new genetic knowledge for people's understanding of their familial roles, ancestral origins, community memberships, and ethnic affiliations. Beneath worries over "genetic privacy," "the therapeutic gap," and the "post-human," this constellation of basic wellspring which both insures and justifies a central place for genetics on the agenda of bioethics.     

Medicare reform: social and ethical perspectives

Despite Medicare's success as a social program, its future is in question because of the program's enormous costs. Because the issue of Medicare reform has been forced upon us at this juncture by a crisis of finance rather than by the long-standing inequities in the present system of paying for the health care of the elderly, questions about how best to secure its fiscal integrity have seized the attention of the public. Yet, such questions are hard to contain; they force an examination of broader and more fundamental issues. In this article, we examine the validity of the ultimate moral and social rationales for continuing Medicare in something approximating its present form; the legitimacy of a social entitlement program that is age- rather than means-based; the implications for the future of health care reform if significant changes were to be made in the Medicare program and its underlying rationale; and the possibility that changes in that program may jeopardize the chances for a more rational, just, and systematic approach to the provision of health care to all Americans.     

Access to mental health supports in England: crisis resolution teams and day services

Access to health care is a complex issue with multiple supply and demand side facets. Here just two issues are explored; the potential for access through availability and the actual access made as indicated by utilisation rates. These perspectives are explored for two mental health services, crisis resolution teams and day hospitals, both of which are recommended components for a comprehensive local mental health care service in England. The geographical spread of these services is considered alongside the level of provision and the extent of their use. Associations between availability and needs, and between use and needs are tested. Tracking resources from funding allocations to provision is also complex and issues around resource allocation are discussed.     

Ethical,legal, social,and policy issues in the use of genomic technology by the U.S. Military

Advances in genomic science are attracting the interest of the U.S. military for their potential to improve medical care for members of the military and to aid in military recruitment, training, specialization, and mission accomplishment. While researchers have explored the ethical, legal, and social issues raised by the use of genomic science in a wide variety of contexts, there has been virtually no examination of these issues in connection with the use of genomics by the military. This article identifies potential uses of genomic science by the military, proposes an applicable ethical and legal framework, and applies the framework to provide ethical and legal guidance for military decision-makers.     

Technology assessment and the sociopolitics of health technologies

In a growing number of countries, health technology assessment (HTA) has come to be seen as a vital component in policy making. Even though the assessment of the social, political, and ethical aspects of health technology is listed as one of its main objectives, in practice, the integration of such dimensions into HTA remains limited. Recent social scientific research on the inherently political nature of technology strongly supports such a comprehensive approach. The growing claims by and on behalf of consumer groups also suggest that HTA should be informed by a broader set of perspectives. Using the example of the cochlear implant in children, this essay compares the professed objectives of HTA with typical practice and explores possible explanations for the discrepancies observed. A second example, home telemonitoring for elderly persons, demonstrates how the types of evidence considered by HTA and the process through which assessments are produced may be reconsidered. We argue for the formal integration of the sociopolitical dimensions of health care technologies into assessments. The ability of HTA to more fully address important issues from a public policy point of view will increase by making explicit the sociopolitical nature of health care technologies.     

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (“empirical facts”). Legal education needs to prepare our students for this broader legal context. This paper examines how “empirical facts” are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.     

Capital punishment in Poland: The debate continues

Throughout its modern history, Poland has not escaped controversies surrounding the use of the death penalty. Tracing the historical development of laws dealing with the issue demonstrates an evolution influenced by various legal, political, social, philosophical, and international factors, leading up to the current absence of the penalty from the Polish legal system. The debate in society revolves around some stereotypical views held by different social groups. One of the biggest challenges is how to reconcile those views with empirical evidence, especially on issues like the deterrent effect of capital punishment. The authors describe the death penalty debate in Poland from these perspectives and take a retentionist position with regard to some selected crimes. As long as there are individuals willing to take other people's lives in a premeditated and deliberate manner demonstrating callous contempt for another person's existence, death remains the only punishment satisfying a sense of social justice and upholding the value of human life.     

Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision

Chaoulli v Quebec (A.G . ) may be the most controversial Supreme Court of Canada decision to date. The Court used social science evidence of foreign health care systems to justify its finding that a provincial ban on private health care insurance unjustifiably violated the right to security of the person. The decision could lead to fundamental structural changes in the way Canadian provinces deliver health care services. Given the importance of Charter jurisprudence in the United Kingdom, and recent debate about the wisdom of incorporating social rights, the case raises a number of pertinent issues for British lawyers. This comment advances two general arguments. First, that the case was wrongly decided because of its poor characterisation of the legislative objective of the ban, unprincipled approach to judicial deference, and poor treatment of expert and social science evidence. Second, far from justifying suspicion of constitutional social rights, the case illustrates precisely why such rights can make a positive difference.     

围绕“人格”问题的法理论辩

"人格"问题在法学与法律上都是个众说纷纭的概念,由此也引起学界对其意义、范围以及与其它概念相区别的争论。诸如"人格的概念在法律上是否必需?","人格概念是否仅存在于私法制度之中?","人格"的概念是否与"法律主体"、"权利能力"的内涵相同?……等等,都常常引起人们的关注。作为法学、法律上的一个基础概念,人格有其存在的特殊意义,它既在私法上成为法律主体建构的基石,也在公法上为人的平等提供了依据。同时,人格既不等同于法律主体,也不类似于权利能力,而是法学、法律上具有独特内涵的专门范畴。     

直面全球化的主体性中国——谈“中国法学的主体性建构”

直面全球化,中国法学首要的问题便是对“全球化问题”本身问题化而非将之视为当然的事实与前设。经由对“全球化问题”的理论建构中国法学才能进一步洞见到全球化的深层内核以及其背后的话语争夺、建构与视角转换问题,才能对作为特定时空的“中国”在全球化下所面对的问题的复杂性与多样性有更清晰的认知。本着这种问题化的理路,经由把“世界结构”作为重新定义“中国”、建构“中国”的历史性条件,中国法学就建构起了一种“关系性视角”与“共时性视角”,通过视角的建构与转换,中国法学才能够洞察“世界结构”对中国的双重强制性并在建构“主体性中国”的过程中据以建构起中国自己的法律理想图景。同时这种“主体性中国”的建构本身就是一种开放的进程。它既要对既有的“世界结构”本身的正当性保持批判与反思,更要对地方性中国对“世界结构”本身的意义与贡献充满想象。“主体性中国”的建构既是直面全球化的中国法学所秉持的一种“中国观”,更是一种“世界观”。     

Comment

Abstract

THIS article surveys some of the most significant issues facing Australian legal education today. Although referencing the research of others, the views expressed in this article are necessarily personal to the authors; they represent a “reflective practitioners'” insight into Australian legal education. The perspectives drawn in this article are painted with a broad brush on a large canvas and in an impressionistic style. As with all ‘overviews’, most of the areas discussed warrant further discussion and research. While some of the concerns raised will be of immediate interest to Australians, the broader issues encompass areas relevant to legal educators in countries facing similar problems and undergoing, as is the UK, a major review of legal education.¹     

法律移植问题探讨

法律移植概念为舶来语 ,应理解为对外来法的继受。法律移植是自古贯今人类法制史上的普遍现象。有六种因素影响法律移植 :经济因素、政治因素、民族因素、地理因素、社会因素、宗教因素。当代世界法律移植有两个新趋向 :法律走向国际统一化和以经济法律移植为主。在我国移植外来法中应注意 :优先考虑法学理论的移植 ,移植先进的法制 ,移植周密完善的法制。     

New perspectives on crime,violence and insecurity in Latin America

This article introduces a Crime, Law & Social Change special issue on rethinking organised crime, collective violence and insecurity in contemporary Latin America. The five contributions, which among them cover the cases of Argentina, Brazil, Colombia, Guatemala and Mexico, address the puzzle of why and how in the midst of the world’s most serious crime and violence crisis ‘stability’ and ‘political order’ are nonetheless maintained. Taking a critical distance to conventional scholarship on these problems, the present collection of papers shifts the focus from one on how democratic regimes and formal institutions of the state are affected to a broader one that puts the spotlight on the ‘real politics’ and ‘real governance’ of crime and violence in the region. Cultural aspects of the ‘collapse of legality’, the holding power of informal institutions and the workings of ‘crimilegal orders’ and ‘criminalized electoral politics’ are explored through variegated conceptual and methodological approaches drawn from political science, criminology, sociology, social psychology, cultural studies and investigative journalism.     

Disentangling the Disability Quagmire in Psychological Injury: Part 1—Disability and Return to Work: Theories, Methods, and Applications

This paper critically reviews and integrates multidisciplinary literature informing conceptualization and determination of disability and return to work from a psychological injury perspective. It focuses on dissecting and disentangling the ambiguities and complexities of theories and definitions of disability, impairment, and return to work, highlighting the conceptual quagmires that affect both research and clinical methodology in the field. The paper discusses the strengths and limitations of the main theoretical perspectives on disability and return to work—social, medical, and biopsychosocial—and the associated applied perspectives, including the legal/administrative, clinical, and research oriented. It provides a special focus on the Americans with Disabilities Act and the American Medical Association’s Guides for the Evaluation of Permanent Impairment as leading applied perspectives. The paper also highlights the features and methodological implications of the integrative framework of the International Classification of Functioning, Disability and Health (World Health Organization, International classification of functioning, disabilities and health, WHO, Geneva, Switzerland, 2001). Finally, it draws implications for the field of psychological injury in a legal context.     

《民法典》第584条(违约损害赔偿范围)评注

《民法典》第584条为有关违约损害赔偿范围的规定,可从事实因果关系和法律因果关系两个视角进行分析。事实因果关系视角下,应注意区分履行利益、信赖利益和返还利益。在因解除而发生的违约损害赔偿的计算中,应注意履行利益和返还利益的关系,避免重复计算。违约损害赔偿范围的决定中,确定性问题位于事实因果关系层面,是事后判断;而可预见性问题位于法律因果关系层面,是事前判断。若涉及确定性问题,确定性问题的探讨应在可预见性问题之前。     

Choosing to limit choice: Self-binding directives in Dutch mental health care

In certain cases of chronic mental illness (for example bipolar disorder) a self-binding directive or Ulysses contract may be a helpful intervention to prevent harm to the person him- or herself and/or others. By choosing such an arrangement, the patient can indicate when and how mental health professionals may intervene against his or her will and provide indicated care which may lead to an improvement of the patient's mental condition. In the Netherlands, since 2008 the Compulsory Admissions Act has been amended and now includes a paragraph on self-binding. Starting from the Dutch debate and statutory regulation of self-binding in mental health care, a number of issues with broader relevance are discussed, particularly as these pertain to the legal regulation and juridification of self-binding. It is argued that too many detailed rules are a threat to increasing patient empowerment.