论法官惩戒委员会的法律地位

设立法官惩戒委员会,并由该委员会对法官履职是否构成违法审判提供专业意见,是完善法官惩戒制度的重要内容和制度创新。对法官惩戒委员会的定位与职能,学界的建议与实际的制度建构并不完全一致。各地在设立法官惩戒委员会的过程中,因对其法律地位的理解不深、不透甚至存在偏差,导致其处于“无功能”的状态。作为一个全新的制度设计,在有域外先例可供借鉴的情况下,吸收其有益经验,再根据中国现实国情来建构,是制度建设的有效途径。当前,应根据修订后的我国《法官法》对法官惩戒委员会的相关规定,在明确法官惩戒委员会法律地位的基础上,在设立主体、委员构成、设立模式上下功夫,并做好与其他职能部门的衔接工作,确保法官惩戒委员会依法建构并保证制度得以顺利运行。     

孤独的法官与法官的孤独——法官的自主性研究

法官需要孤独,孤独不是寂寞,而是一种凝结了真善美的高贵品质。法官的孤独并不是与这个世界的分离,相反法官的孤独是关注这个世界发展的命运基础上的孤独。正是因为法官把握和感受到了这个世界的整体命运,所以法官的孤独才可能对这个世界产生一种推动的力量。法官的孤独是一种具有高度自主性的美好品德。     

The Role of Supervising Judges in the Granting of Parole in France: A Critical Evaluation

Since World War II, France has sought to decentralize and individualize its correctional system. The major change in the process was the creation of a new judicial role, that of Supervising Judge, who would incorporate both judicial and correctional roles. Until 1972, paroles were granted solely by the Ministry of Justice in Paris. But following legislative reforms in 1970 and 1972, Supervising Judges were given increased responsibilities in these matters. As a result there has been an increase in the total number of paroles awarded since 1972.

The hoped-for reforms met with strong opposition from correctional authorities, who perceived Supervising Judges as usurping their authority. The reforms were also opposed by some trial judges who saw them as interfering with the traditional role of courts, particularly in the sentencing of offenders. The ambiguous nature of the role itself, neither clearly administrative nor clearly judicial, has contributed to the problem in the development of the institution.

A major weakness in the present system is the lack of a strong administrative infrastructure which prevents Supervising Judges from operating effectively. Few judges are assisted by counselors, parole officers, or even clerks, who are a necessary part of carrying out such broad responsibilities. Supervising Judges have been the target of public criticisms for “coddling” criminals. Since they have little independence within the judiciary, their ability to function without government pressure is limited. There is, therefore, a temptation on the part of many to play it “safe” in order not to displease the public and the judicial hierarchy. While the survival of the role itself does not appear in danger, it may be limited by further legislative restriction of its authority.     

基层法官司法知识的开示

基于时中国基层司法的调查和研究,本文试图概括地总结中国基层司法中经常运用的一些在现有的法律知识体制中末于以足够重视的知识和技术,并予以初步的理论分析。本文认为,由于中国基层法院法官所处的特定制度空间（初审法院）和时空位置（中国基层社会）,他／她们所需要的知识和技巧不仅与理想型法官不同,而且与上诉审法官也不同。在这种余件下,中国基层法院法官实际上经常并非自党地创造和运用一些知识和技术。这种知识和技术有助于实用主义地解决一些实际问题,并且从现代的其他学科知识看来也具有一定的学理上的正当性,但是在有些情况下,也有可能被滥用。这种从司法实践来的知识,尽管来自基层,缺乏实践者的自我反思,但仍然具有实践意义和理论意义,需要当代中国关注现实的法学象的重视和研究。     

Knowledgeable Judges Make a Difference: Judicial Beliefs Affect Juvenile Court Transfer Decisions

This study examined how judicial knowledge and attitudes about transfer affects transfer decisions by juvenile court judges. Participants included 232 juvenile court judges from around the country who completed a vignette survey that presented a prototypical case involving a serious juvenile offender. Participants were asked to decide whether the juvenile should be transferred and to rate his rehabilitative potential. Judges who believed in the deterrent effects of transfer were more likely to recommend that the juvenile be transferred and to rate him as having lower rehabilitative potential. More experienced judges saw greater rehabilitative potential in the juvenile and were less likely to transfer him to the criminal court. Overall, judges tended to think that transfer lacked general and specific deterrent effects, endorsed rehabilitative over punitive goals in sentencing, and felt positively about the juvenile justice system's effectiveness in handling serious offenders. Yet, a sizable minority of judges felt otherwise. The implications of the findings for judicial education and legal advocacy are discussed.     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

Judges and Statutes: Essays on Agent Orange

Judges characteristically ignore or deny the choices they make when statutes surround or underlie a case. The statute based claims of veterans exposed to Agent Orange provide both an opportunity to unearth the questions that now determine outcome and to suggest what those questions should be. Asking the questions proposed, judges would determine the extent to which uncertainty and thus real choice cannot be reduced, evaluate the potential for interaction between court and legislature on the issue, and reach the underlying value choices that are unavoidably theirs and that determine outcome.     

Forensic Methods and Procedures Applied to Child Custody Evaluations: What Judges Need to Know in Determining a Competent Forensic Work Product

Judges are seeing an increase in the number of forensic reports in the area of child custody. This increase in forensic mental health involvement suggests that judges need to better understand the application of current forensic mental health methodology to assist them in determining a competent forensic work product. Recent literature has argued that child custody evaluators need to craft their reports consistent with scientific methods and procedures as well as legal standards governing admissibility of scientific evidence. This paper provides a framework for judges to assist in determining whether a child custody evaluation has been crafted consistent with current behavioral science literature pertaining to use of forensic mental health methods and procedures.     

The Empire Strikes Back: Press Judges and Communication Advisers in Dutch Courts

Judges in many jurisdictions are today prepared to utilize the media to promote a better public understanding of their role. Understandably, they wish not to be perceived as 'spin doctors' intent on a cynical manipulation of public opinion. Judges' professional reputation, their public image, and public confidence in their role hinge on a belief in their neutrality and impartiality. Court communicators are also aware that their success in the media arena depends on a degree of skill and strategizing to ensure that the integrity and complexity of their message are preserved in media reports. This paper discusses how press judges (judges who also act as media spokesperson) and communication advisers in Dutch courts address this. It is argued that the media liaison function embraced by Dutch courts may be an expansion of law's empire or, at least, a possible attempt by law's empire to strike back against the pressures of an increasingly inquisitive media.     

西方法官职业的历史构建

法官的产生是由统治者（国王）渡让权力的结果。法官自设立之时起，就与正义联系在一起。由于各民族的特点不同，法官产生的路径是不一样的：既有从全社会中民主选举产生的，也有仅从贵族中民主选举产生的。早期的法官其实并非“官”，其在社会上的地位甚至排不上官僚的序列；早期的法官也不是由专家来担任的。司法腐败似乎是随司法权的产生而产生的。由选举产生法官的目的是为了防止腐败；而以任命的方式、以个人品德来产生法官的目的也是为了防止法官腐败，结果都没能制止司法的腐败。法官职业与其它职业一样，是社会分工和制度文明进步的必然产物。不同的政体性质也决定了法官的形式。司法的最终目的是为了保障司法独立。     

A Toolbox for European Judges

The forthcoming instrument on European contract law, be it in the shape of an optional code for cross‐border contracts or as an official toolbox for the European legislator, is likely to have a spill‐over effect on private law adjudication in Europe. Judges will have no great difficulty in finding model rules and definitions that might come in handy when dealing with gaps and ambiguities in European private law. However, the question is whether such a role as a toolbox for judges would be legitimate. I discuss three types of possible legitimation strategies: traditional methods of legal interpretation, the new European methods and merely political legitimation. It will often depend on the circumstances of the case at hand and the characteristics of the particular model rule or definition that is being borrowed what mode of legitimation will prove to be more convincing. However, generally speaking legitimation in terms of the ‘general principles of civil law’ that the CJEU has recently been developing seems a particularly promising strategy. On the other hand, it seems unlikely that European courts could come under a duty, following from the principle of sincere cooperation, to use the instrument as a toolbox.     

Why Is the Equal Merit Principle (Almost) Straightforwardly Wrong?

This article challenges the ‘Equal Merit Principle’, introduced to the judicial appointment process by the Crime and Courts Act 2013. The author argues that this principle does not take diversity seriously enough and none of its possible justifications stand up to close scrutiny. The author also claims that the doctrine that judges should be appointed solely on the basis of merit is either wrong, for the very same reasons as the Equal Merit Principle, or rather uninformative because it fails to give sufficient guidance to those who select judges.     

Publish or Paris? Evidence of How Judges Allocate Their Time

A utility-maximizing model of judicial behavior predicts that,all else equal, judges who have stronger preferences for publishingopinions, who have lighter workloads, or who are able to writepublishable decisions more efficiently are more likely to publishtheir decisions. Using federal district court judges' decisionsregarding the constitutionality of the Federal Sentencing Guidelines,this article presents empirical support for these predictions.Many judicial, institutional, and other characteristics areexamined that should be correlated with a judge's workload orwith a judge's taste for, or efficiency in, publishing opinions.These analyses find that, all else equal, judges who held priorpolitical positions, who received higher American Bar Association(ABA) ratings, who had lighter caseloads, who had longer tenures,who struck down the guidelines, or who had a greater chanceof promotion to a U.S. court of appeals were more likely topublish their decisions. In addition, judges' publication decisionswere significantly affected by the prior decisions of judgesin the same district, but little affected by those of judgesin other districts.     

USING RANDOM JUDGE ASSIGNMENTS TO ESTIMATE THE EFFECTS OF INCARCERATION AND PROBATION ON RECIDIVISM AMONG DRUG OFFENDERS*

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is rearrested after release. Few studies have taken advantage of the fact that, in some jurisdictions, defendants are assigned randomly to judges who vary in sentencing tendencies. This study investigates whether defendants who are assigned randomly to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges. We track 1,003 defendants charged with drug-related offenses who were assigned randomly to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records across a 4-year period after the disposition of their cases to determine whether they subsequently were rearrested. Our results indicate that randomly assigned variations in prison and probation time have no detectable effect on rates of rearrest. The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.     

Judges who drive under the influence of alcohol: ethical implications and the role of restorative justice measures to balance judicial duty and societal expectations

Judges across the US have been charged or convicted of driving while intoxicated, yet many judges are allowed to continue to practice despite their criminal act(s). The issue becomes not only a societal issue, but also an ethical and professional one which impacts the individual criminal justice practitioner and criminal justice agencies. Duty to judicial and social expectations informs an argument regarding ethical theories: deontology and utilitarianism. Solutions include an examination of restorative justice measures such as: a balance of service to the community such as participating in victim-offender mediation and victim-offender panels as the offender, and completing community service where the victim chooses the judges number of hours and location of the service. While some may believe these jurists should suffer punitive punishments such as loss of judgeships, long-term treatment, and extensive probation coupled with individual psychiatric therapy, consideration of all factors with restoration in mind, might be more appropriate for these judicial offenders.     

District Judges and Possession Proceedings

In this article, we draw on data obtained in interviews with District Judges about the factors which they say influence the exercise of their discretion in possession proceedings. Analysing the data set enabled us to create three ideal types of judicial decision—making which we have labelled 'liberal', 'patrician', and formalist'. We discuss the differences between each ideal type across five different variables: the District Judge role; approach; view of occupiers; the problem; behaviour of occupiers. Our data demonstrate a set of reasons to explain different approaches and outcomes between different District Judges (as well as the perhaps unlikely identification of a 'maverick' or 'idiosyncratic' style of judging). We conclude by suggesting on the basis of our data that, despite calls to structure or remove the discretion from District Judges, any such changes are unlikely to have much effect.     

Judicial education on ‘gender awareness’ in Australia

In Australia, as elsewhere, cultural blindness to difference based on gender can affect the impartiality of judging. It is an important aspect of the unstated assumptions on which judges act and which they need to examine. This is especially so where the assumptions are a reflection of dominant social attitudes and values. Judges are expected to apply community values, so long as they are consistent with equality before the law. Blatant examples of gender bias tend to diminish as diversity increases, both within the judiciary and within the legal profession. Stereotyping assumptions can be explored through judicial education, but Australian experience suggests that programmes will only receive a receptive audience if sensitive to concerns about judicial independence. To that end, discussion may best be located within the boundaries of the broader topic of unconscious partiality. Steps being taken in New South Wales to raise gender sensitivity are noted.     

透过民国时期的法官与律师看司法腐败的生成——以江西地区为例

民国时期江西地区是一个富有多样性的司法实践场域,而司法制度变革成效有赖于法律职业群体的努力推进,其中以法官和律师的作用最为关键。由于狭隘的地域人际圈子,造成具有共同专业背景的法官与律师之间固结勾兑的利益联盟。而日益困窘的生活状况又加剧了司法人员权力寻租的恶习,加上司法人员岗位轮换频繁的体制影响,使得家祠化的司法机关成为任用私人和贪赃枉法的渊薮。备受社会舆论和当事人抨击的法官和律师,同时也频频受到体制内的检控惩戒,寄望于如此消极低效的法律职业群体来推进司法制度变革前行,无异于痴人说梦。腐败不堪的江西地方司法预示着基层民众对法律信仰的彻底丧失,而这些旧法统的操持者注定要为旧法统和旧政权殉葬。     

Sentencing Recommendations by Probation Officers and Judges: An Examination of Adult Offenders Across Gender

Connecting the courtroom workgroup model with attributions and stereotyping based on the focal concerns perspective and gender sentencing literature, the present study investigates the extent to which probation officer recommendations influence judicial sentencing, and whether the gender of the offender further conditions this relationship. Results from logistic and ordinary least squares regression indicate that there is concordance between probation officer recommendations and sentencing by judges. Offender gender has both direct and indirect effects on judicial sentencing through its relationship with probation officer recommendations, and Black males tend to receive lengthier sentences than other race/gender counterparts. These findings provide evidence that probation officer recommendations are an important part of the sentencing process and offer additional insight on how extralegal factors such as gender and race impact criminal justice decision making.