物权法中的若干行政法问题

Many elements of administrative law are related to real right law. The regulations on public interests concern the base of interference of public powers. The content of administrative private law is associated with the phenomenon of “Flucht in das Privatrecht”. The control of the property by the based self-ruling community is connected with indirect state administration. The rights of the property by citizens are subjective public rights. Special sacrifice and die junktimklausel are preconditions of compensation for expropriation. The register of real estate shows the interference of public right. The real right law makes rules for administrative public domain is a special example. Liang Fengyun is a juris doctor, who is a judge of the Supreme Court of China. Her individual monographs include Selected Application of Administrative Litigation Judgment and Studies on Public Domain and her co-authored works are Principles of Normal Administrative Law, Seek for Good Circulation of Administrative Litigation System, Better the Administrative Litigation System of China. Moreover, her over 40 essays also appeared in Chinese academic journals.     

REVIEWS

Book reviewed in this article: W.R. Cornish and G. de N. Clark, Law and Society in England, 1750–1950 Lawrence M. Friedman, The Republic of Choice: Law, Authority and Culture Alison Young, Femininity in Dissent David Garland, Punishment and Modern Society Roy Goode, Consumer Credit Law     

What does it mean to suffer loss? Haxton v Philips Electronics

In Haxton v Philips Electronics the Court of Appeal considered whether a widow could recover the diminution in value of her dependency claim following the defendant's tortious reduction of her life expectancy. The note outlines the development of the common law, demonstrating that Haxton is novel but not unorthodox, and tests whether Haxton's principles can provide a sound foundation for future cases. Positing three hypothetical scenarios, it argues that the disparity in outcome, rather than indicating a lack of unifying principle, as was suggested in Jobling v Associated Dairies, may be explained by combining Austin's division between primary and secondary rights with Gardner and Stevens' contributions as to how they are protected. Restitutio in integrum requires consideration of the reasons and values underlying the right in question and these are discernible in the jurisprudence. The note also considers whether Haxton could have been decided on the basis that a defendant should not profit from its own wrongdoing.     

JAILS AND SERVICES FOR INMATES A Perspective on Some Critical Issues

The nature and scope of the jail role within the criminal justice system is explored. Questions are raised as to the types of functions which jails should perform, the appropriateness of jail services, and alternatives for the administration of jails. The authors suggest that solutions to the various issues require active involvement of an informed public providing policy direction to the criminal justice system. The paper concludes by observing that many of these critical jail issues can find satisfactory solution when there is a joint commitment on the part of practitioners, researchers, and the community sector to actively seek answers.     

Inaccurate Conception: ACB v Thomson Medical

This note considers the decision of the Singapore Court of Appeal in ACB v Thomson Medical in which the plaintiff sought damages for the upkeep costs of a child conceived using sperm from someone other than her husband as a result of negligence by a fertility clinic. The Court held that upkeep costs could not be recovered as a matter of public policy, but recognised a new head of loss, namely damages for loss of genetic affinity. In a controversial ruling, the Court quantified these damages at thirty per cent of the upkeep costs of the child. While holding that punitive damages could be recovered outside the categories recognised in Rookes v Barnard, the Court rejected such an award on the facts of the case.     

Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination

In cases concerning indirect religious discrimination the claimant must demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage because of her religion. In Eweida v British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as the basis for a claim of indirect discrimination. I discuss, first, the reasoning of the Court of Appeal in Eweida; then I examine the way personal religious beliefs have been treated in other cases in Britain and in the United States; finally, I place the issue in a wider human rights framework.     

Using the Referral Decision Scale to Screen Mentally Ill Jail Detainees: Validity and Implementation Issues

The prevalence of serious mental illnesses in jail populations is significantly greater than in the general population. Identifying individuals who warrant psychiatric evaluations is important and benefits correctional staff as well as detainees. One widely used screening instrument intended for this task is the Referral Decision Scale (RDS). This paper reviews the development and validation of the RDS. Using data from a multisite study which assessed postrelease outcomes for detainees with mental illness, various types of validity are addressed. The results confirm that the RDS has some inherent characteristics that seriously limit its practical application as a screening instrument for use by correctional staff.     

Not guilty? Another look at the nature and nurture of economics students

In this paper, we re-examine students’ attitudes towards various allocation mechanisms for a scarce resource. For this purpose, we have run a survey among officers of the German military who are enrolled in different courses of study (such as economics) at the University of the German Federal Armed Forces. We find that significantly more students who are enrolled in economics courses judge price increases as fair than students enrolled in other courses. Moreover, this tendency strengthens the more training in economics the students receive. In addition, fewer students with advanced economic education judge allocation through the local community as fair when compared to first-year students in economics courses or other students. These results stand in contrast to results obtained by Frey et al. (J Econ Educ, 24:271–281, 1993) on the same survey. In summary, we find evidence for both nature and nurture effects.     

Co-occurring serious mental illnesses and substance use disorders as predictors of assaultive infraction charges among adult male jail inmates

This study used self-report data from 4642 adult male jail inmates to test the hypothesis that inmates with co-occurring serious mental illnesses (SMIs) and substance use disorders (SUDs) (i.e. co-occurring disorders) would report having been officially charged for assaulting staff or inmates more often than inmates without co-occurring disorders. Negative binomial regression indicated that relative to inmates with neither SMI nor SUDs, assault charges were most likely to be reported by inmates with co-occurring SMI and substance abuse, co-occurring SMI and substance dependence, and only substance abuse, respectively (ps ≤ .01). Having been charged with assault was also strongly associated with assault victimization before and while incarcerated (ps ≤ .05). This article concludes with recommendations for jail policies and future research.     

Service v. Security Focus in Training Assessments

ABSTRACT

As jails have moved to professionalize their staffs the role of the correctional officer has become broader in scope and now encompasses both service and security functions. However, some research suggests that female correctional staff may have more of a “service” orientation than males. In our analysis of one dataset from exclusively women's jail facilities we investigate correctional officer preferences for training (service v. security) to see if they differ by gender. We find that both male and female correctional officers generally rank service type training over security and that they differ little in their overall assessment of initial training provided and usefulness of in-service training. We also find that minority officers may be more likely to value service training than their nonminority counterparts.     

Re-Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors

In Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.     

The Place of Wishes and Feelings in Best Interests Decisions: Wye Valley NHS Trust v Mr B

In Wye Valley NHS Trust v Mr B the Court of Protection decided that it was not in the best interests of Mr B to receive amputation surgery against his will, notwithstanding that he would die without the treatment. The judge met with Mr B in person and his best interests decision placed significant weight on Mr B's wishes and feelings. This case note considers this influential case in the context of ongoing debate about the place of wishes and feelings in best interests decisions under the Mental Capacity Act 2005. It considers the history of the best interests principle, its interpretation by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James, ongoing debates about its compatibility with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, and recent proposals by the Law Commission for statutory amendments to the Mental Capacity Act.     

Trials of battered women who kill: the impact of alternative forms of expert evidence

The introduction of battered woman syndrome testimony in trials of battered women who have killed has stirred considerable debate within the psycholegal community. Much of the controversy stems from the testimony's focus on the woman's passivity, as well as its partrayal of a single profile of battered women. In light of these concerns, proposals to alter the content of the testimony (e.g., dropping the syndrome terminology, focus on battered women's social reality as opposed to their psychological state and reactions) have surfaced. In the present research both the woman's prior response history (passive, active) and the presence of expert testimony (battered woman syndrome, social agency, no expert control) were manipulated in a homicide trial involving a battered woman who had killed her abuser. Overall, participants, drawn from both a university (N=195) and a nonuniversity setting (N=202), rendered more lenient verdicts and provided more favorable evaluations of the defendant's claim of self defense in the presence of expert testimony (either form) compared to a no expert control. Further, these effects were more pronounced for the student than the nonstudent sample. Implications of these findings for the use of expert evidence pertaining to battered women are discussed.     

American Capital Punishment in Comparative Perspective

It is often said that American capital punishment fulfills no purposes, serves no functions, and possesses no coherent rationale. In Peculiar Institution: America's Death Penalty in an Age of Abolition (2010), David Garland argues that American capital punishment is functional, meaningful, and effective, especially in the cultural realm of death penalty discourse. He also demonstrates that America's radically local version of democracy helps explain why the death penalty has persisted in the United States long after it disappeared in other Western democracies and that many of the peculiar forms through which American capital punishment is now administered have been designed to deny association with the lynchings that have occurred in American history. Garland arrives at these conclusions by comparing capital punishment in contemporary America with death penalty systems from the American past and from other Western nations. This essay argues that comparison with Asia further illuminates what is peculiar—and ordinary—in American capital punishment.     

The Great Rabbit Massacre – A “Comedy of the Commons”? Custom, Community and Rights of Public Access to the Links of St Andrews

In the US courts and legal scholars have rediscovered the English doctrine of custom. In her essay ``The Comedy of the Commons: Custom, Commerce, and Inherently Public Property', Professor Carol Rose argues that customary uses of recreation lands should be upheld by courts because the highest value of such land is achieved by keeping them open to the public. Rose relies in her argument on the English doctrine of custom, but the doctrine of custom legitimates local not public use. British legal history, however, provides an example of such a ``public' common in the Links of St Andrews. In the case Dempster v. Cleghorn, the golfing public sought to vindicate their customary right to the maintenance of golfing ground as it had been ``in all times past'. This article examines the case of Dempster, and the consequent riot, and asks whether it was a ``comedy of the commons'. It concludes that despite ten years of litigation and the extirpation of the Dempsters' warrened rabbits, the case nevertheless is a ``comedy of the commons' that provides a model of the meditation of public use by local custom and community. This revised version was published online in August 2006 with corrections to the Cover Date.     

Screening of Women in Jail for Health Risks and Needs

Abstract

In order to address the relative lack of services for women who come into contact with the criminal justice system, there is a need to develop quick and easily administered screening tools. This pilot study was conducted with 110 women in two urban county jails in Ohio. The purpose of the project was to develop and pilot a quick multidimensional screening instrument for women in jail to identify risk and rehabilitative needs. The project resulted in a 15-item screening tool which can be used in urban crowded jail settings to identify women at risk for health, substance abuse, mental health, family, employment or housing risks.     

The relationships between time in jail,time on electronic monitoring,and recidivism: An event history analysis of a jail-based program

Considerable theoretical and empirical attention has been given to the relationship between time incarcerated and recidivism. Much less attention has been devoted to alternative sanctions such as house arrest with electronic monitoring and recidivism following participation in such programs. In this paper we use event history techniques to assess the relationships between time spent in jail, time spent on electronic monitoring, and recidivism in a sample of offenders who spent at least some time on electronic monitoring. The results suggest that the longer the time on electronic monitoring, the lower the likelihood of recidivism. This effect, however, varies by type of offender. Despite some evidence of a curvilinear relationship between time in jail and recidivism, the relationship is not robust to the inclusion of other control variables. Theoretical and practical implications of these findings are discussed.     

Mayberry revisited: The characteristics and operations of America's small jails

Much attention has been focused on the problems of America's prisons and jails. Jail research and often jail litigation have centered on large county or municipal jails; often these resemble correctional systems and are so called. Yet many of the nation's 3041 counties are small, rural, and sparsely populated. In a 1982 survey conducted by the National Sheriffs' Association, 640 jails had bed space for 16 or fewer inmates. Many of these jails suffer from the same kinds of deficiencies as large jails, although these problems are not exacerbated by size. Most jails suffer from lack of adequate funding, but for small jails this is a particularly acute problem which affects all facets of operations.

Data from the 1983 National Jail Census and the 1982 National Sheriffs' Association survey are used to develop a profile of the overlooked but important small jail, defined for our purposes as a facility capable of housing ten or fewer inmates. This profile indicates that small jails are older, have less cell capacity, and provide fewer health and rehabilitation services than their larger counterparts. The national prevalence of small jails and some of their notable deficiencies suggest that alternatives to these facilities be considered.     

The Prevalence of Mental Illness Among Inmates in a Rural State

A limited number of recent empirical studies suggest that inmates suffer from high rates of serious mental illness. Different explanations are offered depending on the type of institution: jail or prison. The literature is based largely on urban samples and does not offer comparisons of rates across types of institution within a single study. The present study examined a random sample of 213 jail and prison inmates in a rural state using the Diagnostic Interview Schedule (III-R). Among jail inmates there was little evidence of high rates of serious mental illness, suggesting the criminalization of mental illness may not be as evident in rural settings as urban areas. Among prison inmates, however, high rates of mental disorders were found, supporting previous findings in urban and rural jurisdictions. Implications of the findings are discussed in the context of a consolidated correctional system.