“大调解”机制中法院的角色定位

"大调解"纠纷解决机制在基层实际运行状况如何,法院参与构建大调解机制是否存在必要性,从实然和应然的角度对法院在"大调解"中的地位进行分析,法院的角色定位为"参与者"可能比较合适,在"大调解"机制的运行中承担指导服务和保障作用。     

法院调解优先的冷思考

近年来,法院调解作为维护和谐社会的一项司法政策被强化,并被推至优先地位。但是,强化调解可能形成义务人无需充分履行义务的期待,导致久调不决的现象发生,降低了诉讼效率;强化调解所营造的使权利人让步的＂囚徒困境＂会折损诉讼公正,会使人们的法律虚无主义意识蔓延。与此同时,调解优先使法院在司法实践中也陷入困境,即法院调解优先与民事诉讼以审判为中心的程序构造相背离,使法官在民事诉讼程序中无所适从;而且加剧法院调解能力下降与追求高调解率之间的矛盾,并使＂强制调解＂再次成为司法垢病。为使调解回归应有状态,我们必须尊重调解和审判的特点,消除二者非此即彼的对立状态,寻求二者共同发展的契机。唯有如此,才能完善民事诉讼纠纷解决机制,发挥调解和审判的优势。     

LESSONS LEARNED FROM A CHILD PROTECTION MEDIATION PROGRAM: If At First You Succeed and Then You Don't…

This article discusses the U.A.L.R. child protection mediation program as well as several other child protection mediation programs in order to examine what makes a program a continuing success. Child protection mediation programs have gone through a period of tremendous progress and growth over the past 20 years in the United States and Canada. Numerous studies have shown that child protection mediation helps families and courts by lowering the amount of time that children spend in foster care and the amount of costs for courts and agencies. Child protection mediation is an essential tool for juvenile courts and the families that have cases there. This article addresses the development of child protection mediation programs, their importance to juvenile courts, and some reasons that these programs succeed or fail. Although many of these programs have early accomplishments, they have not always been able to maintain their growth or to continue to exist. The U.A.L.R. Mediation Project has not sustained its early levels of cases or referrals from court for numerous reasons. Using the techniques of other thriving programs, we will attempt to restart and re-energize the program. It has been established that the people who have a role in the establishment of a program, the funding sources and especially the commitment of the parties to the program all have a significant long-term impact. This article points out how programs should begin and proceed if they are to be a long-term success.     

The Drug Court as Postmodern Justice

The drug court is far more than a new version of the old drug-diversion idea. It is a fundamental embodiment of postmodern justice and represents a paradigm shift from criminal court practices. This article compares the drug court to the criminal court in terms of the dimensions of the modernism-postmodernism debate as specified in legal research and public policy scholarship. First, the courts are differentiated in terms of their worldviews, ideas on the nature of society, definitions of truth, and conceptions of the foundation of law. Next, the drug court and criminal court jurisprudence are juxtaposed. Specific dimensions include their collaborative versus adversarial systems and the individualized versus the due process framework. Finally, the two courts are considered in terms of their divergent visions of the drug user. Upon analysis, it appears that the two courts are in an intractable ideological disagreement framed by competing modern versus postmodern intellectual dispositions.     

Reframing the mediation debate in Irish all-issues divorce disputes: from mediation vs. litigation to mediation and litigation

Mediation currently plays a minor role in the Irish family justice system, yet a policy consensus exists that more couples should be encouraged to mediate and that increased rates of mediation will reduce the numbers seeking redress through the courts. The Mediation Act 2017 adopts this position, assuming that the provision of information on mediation will increase uptake and that mediation offers an alternative to litigation for most civil disputes. This article reviews attempts in Ireland, England and Wales to encourage family disputants to mediate, identifying weaknesses in the information strategy. It also examines the legal framework governing all-issues divorce and dissolution in Ireland, pointing to the limited potential for mediation to act as an alternative to litigation. It concludes by arguing that policy focus must shift away from encouraging mediation as an alternative to litigation towards more nuanced understanding of mediation as a support to court based dispute resolution.     

Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers,Elders, Community Representatives,and Indigenous Court Workers

Indigenous sentencing courts are now an established form of innovative justice practice in most Australian jurisdictions. Whether such processes, which involve the participation of local community elders or representatives in sentencing an offender, provide a “better” form of justice is still up for debate. Recidivism analyses have yet to find that these courts are more likely to reduce reoffending than their mainstream counterparts. Some scholars argue that this is not the sole purpose of the courts and that other measures of “success” should be utilised when evaluating their performance. This article uses interviews with judicial officers, elders, community representatives, and Indigenous and non‐Indigenous court workers to explore what the courts are seeking to achieve and how that translates into a different form of doing justice.     

Court Finance and Court Responses to Judicial Reforms: A Tale of Two Chinese Courts

This research studies the responses of two lower-level courts, one in rural and the other in urban China, to recent judicial reforms focusing on strengthening institutional building and professionalism. It finds that the court-funding structure under which the courts heavily rely on the local government for expenses, together with the unbalanced development of local economy, remarkably affects the two courts' behavioral pattern in different ways. The rural court, for the sake of litigation fees, tries to attract potential litigants to file certain lawsuits, even though it cannot effectively handle them. The efforts toward institutional building and professionalism only aggravate the already difficult situation. The urban court's institutional quality seems to have increased in the reform process, thanks to sufficient resources from the developed and diversified local economy. But it has also become more formalized and bureaucratic, as it tries to exclude difficult and problematic disputes from getting into the court. In illustrating the complexity of transitional China's judicial reform process generated by both the unbalanced economic development and the bureaucratization of the judiciary, this article suggests that the enhancement of institutional quality, which many argue is key to economic development, may itself be contingent upon the success of economic development.     

Worthy of Justice: A Veterans Treatment Court in Practice

This article examines the purpose and practice of a Veterans Treatment Court (VTC), a new type of problem-solving court designed to connect qualifying former service members in the criminal justice system with social services. While existing studies of VTCs explain these courts by focusing on veterans' distinct needs or deservingness based on their military service, this article argues that these courts are being created because of societal beliefs about veteran worth. By revealing how court staff, participants, and volunteers in one VTC invoke beliefs about veteran worth, the findings of this study show that VTCs link worth to veteran identity, leaving participants suspended in conflicting notions of state and individual responsibility for criminal behavior.     

Juvenile Court Context and Detention Decisions: Reconsidering the Role of Race,Ethnicity, and Community Characteristics in Juvenile Court Processes

The relationship between race/ethnicity, community dynamics, and juvenile court processes has long been established. Prior research has relied on city‐ or county‐level measures of community characteristics (e.g., racial composition, poverty) to examine how racial groups are processed within juvenile courts. To date, no study has utilized finer scale measures of geographic areas to examine how characteristics of juveniles’ communities impact court decisions. By utilizing official juvenile court data from a city in the southwest, this study draws upon attribution theory to examine how economic and crime community‐level measures directly and indirectly influence detention outcomes. Findings reveal that the effect of race and ethnicity in detention outcomes varies across communities, and the effect of ethnicity in detention decisions is mediated by economic community‐level measures. The theoretical and policy implications of the study findings are discussed.     

论法院重大敏感案件的风险评估与处置

建立重大敏感案件风险评估机制,已经成为一个不容回避的问题。本文结合法院审判实践,从经验总结的角度对敏感案件进行了归纳,并初步探讨了重大敏感案件的风险评估与处置办法。这些办法主要包括：法院要把好立案关,能够在第一时间发现敏感案件并努力促成调解;审理时要借助网络收集民意,判决结果要综合考虑政治效果、社会效果（舆论效果）;执行时争取得到当地党委政府及相关部门的支持,在善用司法建议解决敏感案件的同时提高相关部门的管理水平。     

Time and Transcendence: Narrating Higher Authority at the Caribbean Court of Justice

This article examines the relationship between time and authority in courts of law. Newness, in particular, poses an obstacle to a court's efforts to establish authority because it tethers the institution to a timeline in which the human origins of the court and the political controversies preceding it are easily recalled. Moreover, the abbreviated timeline necessarily limits the body of legal authority (namely, the number of judgments) that could have been produced. This article asks how a court might establish its authority when faced with such problematic newness. Based on extensive ethnographic research at the Caribbean Court of Justice, I demonstrate how the staff and judges at this relatively young tribunal work to create a narrative in which the Court transcends its own troublesome timeline. They do this by attempting to construct a time‐transcendent principle of Caribbeanness and proffering the Court as a manifestation of this higher authority. The Court's narrative of its timelessness, however, is regularly challenged by far more familiar tales of its becoming, suggesting that in this court, as in all courts, the work of building and maintaining authority is ongoing.     

Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court

How courts and judges in authoritarian regimes decide cases behind closed doors has rarely been studied, but it is critically important in comparative judicial studies. Primarily drawing on the minutes of the adjudication committee in a lower court in China, this article explores its operational patterns and decision‐making process. The data suggest that among the criminal cases reviewed by the committee, very few were difficult or significant, but a relatively high percentage of the suggested opinions of the adjudicating judges was modified. In contrast, many civil cases reviewed were difficult to resolve but the committee offered little assistance. Overall the operation and decision‐making of the committee were subsumed by the administrative ranking system inside the court and the authority of the court president was enormous. The analysis also demonstrates the limited role of the committee in both promoting legal consistency and resisting external influences. Instead of achieving its declared goals, the committee has degenerated into a device for both individual judges and committee members to shelter responsibility. The findings compel researchers to reevaluate the role of the adjudication committee in Chinese courts, and the relationship between judges and authoritarian regimes.     

Coercion and Consent: A Tale of Two Court Reforms*

The state courts in Maine have improved compliance with small claims judgments through two distinct reforms: an automatic disclosure process and a court-based mediation program. The first of these survived only briefly but the second is well institutionalized. After showing the similar effects on compliance rates of these two reforms, we conclude that contrasting fortunes of mediation and automatic disclosure can be attributed to their different effects on the costs and work life of courts as organizations and can be further understood in terms of their impact on the court as an institution with fragile authority.     

When Systems Collide: Improving Court Practices and Programs in Dual Jurisdiction Cases

The purpose of this article is to identify promising court‐based or court‐linked practices and programs that can effectively address the difficult challenges posed by dual jurisdiction cases. It is an initial effort to present what courts are currently doing or what courts can do to improve coordination of dual jurisdiction matters.     

QUESTIONS ABOUT FAMILY COURT DOMESTIC VIOLENCE SCREENING AND ASSESSMENT

Increasingly, family courts are seeking ways to focus limited resources on cases that require the most intervention, tailor court responses and dispute methods to each case, and account for the real differences among domestic violence cases. One of the means to that end may be the triaging or screening of cases. This article raises a number of questions about screening and urges that they be addressed by courts and communities that are considering whether and how to design a screening protocol. Issues include: How should we define domestic violence for the purposes of screening? Who should carry out the screening? How can we maximize the likelihood that we will fully assess the context of the violence in each case? How should we assess the risks or dangers inherent in the parties’ situation? How should a screening effort account for changing circumstances as a case proceeds through the courts? How can information gathered in a screening effort improperly impact subsequent decisions of the court?     

What's So Special about Specialized Courts? The State and Social Change in Salt Lake City's Domestic Violence Court

The nationwide growth in specialized or problem‐solving courts, including drug courts, community courts, mental health courts, and domestic violence courts, among others, raises questions about the role of the state with respect to social change. According to social control theories of the state, especially theories of technocratic or rationalized justice, law is increasingly about efficiency, speed, and effectiveness. Specialized courts, however, take on a social problem approach to crime, seeking to address crime's “root causes” within the individual, the society, and the larger culture in ways more characteristic of social movements. Are specialized courts about social control or social change? This study examines state action in a specialized court in domestic violence in order to examine this question. I focus on a domestic violence court that arose in February 1997 and four years later employed full‐time judges, prosecuting and defense attorneys, and numerous other staff to handle all misdemeanor domestic violence cases in Salt Lake County, Utah. I ask how legal, political, and community officials justify the court and its operation in order to examine some important issues about the role of the state and social change. Ultimately, I suggest that my findings about the complementary roles of social control and social change within domestic violence courts have implications not only for critical theories of technocratic justice and for the battered women's movement but also for democratic theories of the state.     

No Judge,No Job! Court errors and the contingent labor contract

Judges are prone to error and misapprehension when they are verifying the facts of a legal case. We analyze the significance and scope of accurate court decisions and judicial error for labor contracting and identify the implications of these concepts on behavioral incentives and market outcomes. We find that imperfect judicial state verification and the diverging beliefs on a court ruling reduce the efficiency of contingent labor contracts and make them less effective in stipulating sufficient incentives for compliance. If increasing court accuracy in general is not feasible, the courts (and the legislator) should primarily mitigate type I errors. The common reversal of the burden of proof to the employer in labor laws reflects these insights. The model also indicates that the ability of judges to verify facts is a prerequisite for efficient law-making and contributes significantly to the economic role of courts.     

STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

In this article, the author reviews state supreme court applications of Troxel v. Granville , analyzing the impact of the decision on the courts' ongoing efforts to adjudicate visitation disputes between parents and grandparents. Set against a background of legislative recognition of grandparents' rights and judicial uncertainty regarding the appropriate role of nonparents in children's lives, Troxel reaffirmed the constitutional right of parents to direct their children's upbringing. The author argues that state supreme courts evaluating gradparent visitation statutes and seeking to enforce Troxel 's presumption in favor of parents should be more willing to strike down overly broad statutes. Such an approach would be a positive step toward addressing the excessive judicial discretion that the Troxel Court found so problematic, and would signal to state legislatures the need for statutes that both provide for the needs of children and protect parental rights.     

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post‐2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re‐allocation of executive authority within the EU (sanctioned in UK v Parliament and Council and Gauweiler v Deutscher Bundestag). The article traces the distinction's roots in legal conceptions that have shaped legal‐administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public‐interest‐regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision‐makers, rather than how courts may review an exercise of discretion.