An American Future? Contingency Fees,Claims Explosions and Evidence from Employment Tribunals

This article looks empirically at the notion of ‘American‐style’ problems with contingency fees: in particular, the purported link between contingency fees and claims explosions. It does so in the light of renewed interest in contingency fees as a vehicle for access to justice and the resolution of costs problems in the civil justice system prompted by Jackson LJ and others. The article sheds light on the considerable debate about the (de)merits of contingency fees in one of the main – and most controversial – contexts where they are permitted: employment tribunals. The evidence casts doubt on the claim that contingency fees, coupled with US‐style costs rules, lead inexorably to an explosion in litigation. The article also examines the significant inequalities in access to justice experienced by claimants and considers how far contingency fees address those concerns, suggesting limits to Kritzer's portfolio theory in relation to employment cases in England and Wales.     

The Rise of Digital Justice: Courtroom Technology,Public Participation and Access to Justice

This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. Against the backdrop of the government's current programme of digital court modernisation in England and Wales, it examines the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. The article contends that legal reforms have omitted any detailed consideration of the type and quality of citizen participation in newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court‐based processes; and for enhancing democratic procedure through improved access to justice. It is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice.     

Juvenile Court Variations: Procedural and Processing Differences in a Midwestern State

This study examined whether location and type of juvenile court impacted processing for juveniles in a Midwestern state. 1 For the analysis, the author used qualitative data. This article was built on the opinions and observations of those who work in the juvenile justice system on a daily basis. The author observed juvenile courts and interviewed judges, prosecutors, and defense attorneys. The information contained herein verifies the differences between rural and urban juvenile justice practice and procedure. The results of this study also revealed that processing varies across jurisdictions and type of court in the juvenile justice system.     

诉权的宪政之维

目前我国的诉权研究视野比较狭窄、法理根基的探讨比较单薄,基于诉权与宪政之间的内在逻辑联系,从宪政的维度更能够厘清诉权的来源、属性与价值,这有助于拓宽诉权的思考空间,深化对诉权的理论研究,凸显加强诉权的宪法保障之重要意义。     

ASSESSING AND MANAGING ALLEGATIONS OF CHILD SEXUAL ABUSE

This article examines the procedures involved in the assessment and management of allegations of child sexual abuse in courts exercising custody and access jurisdictions. The author discusses the various options available to the court when confronted with such allegations, noting that, in the contex: of access disputes, the issue for the court is not whether a parent has sexually abused a child but whether, in all the circumstances of the case, access should take place or custody should change. In all matters involving access between parents and children, the overriding principle is the paramountcy of the welfare of the child. It is also argued that supervised access, although an increasingly popular alternative for the court when faced with allegations of abuse, is problematic and may not be in the best interests of the child. The author suggests that the emphasis must be on children's rights find parental responsibilities.     

The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment

The proposition put forth in this paper is that whether—and the extent to which—harm or potential harm to the environment (its natural resources, living beings, and their ecosystems) is identified, resisted, mitigated, or prevented is linked to the nature and scope of public access to information, participation in governmental decision-making, and access to justice—which are often referred to as “environmental due process” or “procedural environmental rights.” Using examples in the United States of attacks on law school clinics and denial of standing in court, this paper argues that restrictions on public access to information, participation in decision-making, and access to justice create legacies and “cultures of silence” that reduce the likelihood that future generations will be willing and able to contest environmental harm.     

欧洲法院的司法独立性对欧洲一体化进程的贡献

半个世纪以来,欧洲一体化进程的实践证明,经济一体化、政治一体化的实现都离不开统一的欧洲法律体系的建设。欧洲法院司法实践证明,在欧洲一体化进程中,欧洲法院司法独立的作用功不可没。文章从分析欧洲法院的特点入手阐述其司法独立性及其在欧洲一体化进程中的作用。     

当事人程序主体性原则──兼论“以当事人为本”之诉讼构造法理

当事人程序主体性原则,所要阐明的是民事诉讼制度"为谁而存在"的问题。按照当事人程序主体性原则的要求,诉讼程序应当以"当事人为中心"而构建,尊重当事人的意愿、保障其权利和自由,让其发挥决定、支配和主导作用;而法院则应当为满足当事人的诉讼要求提供妥当的"司法服务",为当事人进行诉讼创造具有"亲和性"和"易于理解"的诉讼空间。当事人程序主体性原则,还要求建立以当事人为主导、畅通主体之间的"对话"与"沟通",形成既有"分权"又相互"协作"的诉讼构造关系。     

Territorial justice and access to knowledge: the distribution of high-level legal skills in the regions of England and Wales

This paper conducts a mapping for the regions of England and Wales of legal specialisms which are explained in terms of spatial forces of gravitation. There are geographic barriers to access to justice arising out of the ‘friction of distance’. There is a filter effect which varies, depending on the type of legal problem which correlates with distance in respect of some categories of legal work which, in turn, raises considerations of territorial justice. Whether the role of law in this respect is thought of as a matter of access to justice or of access to competitive advantage raises important issues as to the effectiveness of the current organisation of the legal profession. Significant questions arise as to the capacity of solicitor firms within the regions of England and Wales to support the development of regional knowledge-based economic strategies. In turn, this has implications for the reform of the court structure in England and Wales and also various policy considerations in respect of nurturing the development of high level legal skills within the regions.     

铁路运输司法机构存废论

铁路运输专门司法机构的司法问题产生了一系列的社会矛盾,司法不公成为社会关注的焦点。其表现不但在理念选择上片面强调国家利益甚至是企业利益,牺牲社会正义和司法公正;而且行为方式上将行政权置于司法权之上,使国家司法行为蜕变为企业司法行为。由此带来诸多弊端并亟待消除。在改革的方式上,取消铁路运输法院是较为现实的选择。     

INTERORGANIZATIONAL UTILITY OF WELFARE STIGMA IN THE CRIMINAL JUSTICE SYSTEM*

The appropriation of “welfare stigma” or stereotypes about poor people's overreliance and abuse of public aid in two core criminal justice functions is examined: felony adjudication in a court system and space allocation in a jail. Through a comparative ethnographic study in which an abductive analysis of data (20 months of fieldwork) was used, we show that criminal justice gatekeepers utilize welfare stigma to create stricter eligibility criteria for due process in criminal courts and occupancy in jails. Specifically, the number of court appearances, motions, trials, jail beds, food, showers, and medical services is considered by professionals to be the benefits that individuals seek to access and abuse. Professionals view their role as preventing (rather than granting) access to these resources. The comparative nature of our data reveals that welfare stigma has interorganizational utility by serving two different organizational goals: It streamlines convictions in courts, which pulls defendants through adjudication, and conversely, it expands early release from jails, which pulls inmates out of the custody population. In the context of diminishing social safety nets, our findings have implications for understanding how discretion is exercised in an American criminal justice system increasingly tasked with the distribution of social services to the urban poor.     

Youth justice conferencing and indigenous over-representation in the Queensland juvenile justice system: a micro-simulation case study

Restorative justice conferencing for young offenders is firmly established in Australian juvenile justice, and legislated conferencing schemes are operating in all Australian states and territories. While there is some variation in the terms used to describe restorative justice conferences (e.g., family group conferencing, family conferencing, or youth justice conferencing), there is much more consistency in how the conferencing process is managed across Australian jurisdictions. In Queensland youth justice conferencing is a process that brings together an offender, the victim and their supporters to discuss the harm caused by the offending behaviour and provide the young person with an opportunity to take responsibility for his or her behaviour and make amends. This paper begins by briefly sketching the development of restorative justice conferencing in Queensland and describes the Juvenile Justice Simulation Model (JJSM), a micro-simulation model developed for criminal justice policy analysis in Queensland, Australia. We use this micro-simulation model to conduct an experimental exploration of the effects that youth justice conferencing has on system-wide outcomes for indigenous young people. The model simulates the impact of interventions up until 2011 on the number of finalised youth justice court appearances. Our results indicate that youth justice conferencing is unlikely to reduce the over-representation of indigenous young people in the juvenile justice system. The simulations demonstrated that, by the 2011, youth justice conferencing would result in a 12.5% decrease in finalised court appearances. Unfortunately, this decrease was more apparent for non-indigenous young people (13.7% decrease in court appearances) than for indigenous young people, who had a 10.5% decrease in court appearances. This differential impact of conferencing is due to the different court appearance profiles between indigenous and non-indigenous young offenders, with indigenous young people initiating offending at an earlier age and offending more frequently than non-indigenous young offenders.     

Predicting sentencing outcomes and time served for juveniles transferred to criminal court in a rural northwestern state

In the past few decades, the focus of the juvenile justice system shifted from the best interests of the child to the best interests of society. One component of the shift was an increase in the waiver of juveniles to adult criminal court. Prior research suggested juveniles were typically sentenced to short prison sentences or probation in the adult criminal court. On the other hand, more recent evidence suggested sentencing outcomes had varied by offense type. In the present study, the author examined what occurred in a primarily rural northwestern state. Additionally, multivariate analyses were used to examine which factors aided in predicting sentencing outcomes and time served for this population.     

拆迁乱象的根源分析与制度重整

《国有土地上房屋征收与补偿条例》规定的以司法强拆取代行政强拆的制度难负众望,因为法院缺乏保持司法中立的制度性保障,同时又缺乏对作为拆迁根据的法规、规章等违法性"法律"进行解释和审查的权力。司法强拆并不能终结拆迁悲剧。解决拆迁问题的关键是对被拆迁人作出公平、合理的补偿,这就要求必须从补偿范围、补偿标准、补偿形式等各方面全面调整目前的拆迁制度设计,特别是要对土地使用权的价值作出补偿。从深层次上说,解决拆迁问题必须解决土地征收背后的财政、人事等体制性根源,并推进、深化司法与政治体制改革。     

质疑民事诉讼征收案件受理费

在民事诉讼中,不应征收作为程序启动费的案件受理费。目前征收案件受理费的根据不足、理由不充分,导致厌讼、私力救济盛行和管辖无序等一系列消极后果,从法院的性质和法院与仲裁机构的比较来看,征收案件受理费也不具有合理性。在民事诉讼中,取消对案件受理费的征收,可以保持法院的中立和纯洁,培育民众对法院和法律的认同心理,为中国的法治建设创造更为理想的环境。     

From Centre Stage to Spear Carrier: The Repositioning of the English Juvenile Court

The approach of the new millennium poses significant challenges for the way in which the youth justice system in general, and the juvenile (now youth) court in particular, develops in the future. The past one hundred years of the juvenile court in England and Wales have seen its role both flow and ebb. It currently faces further significant repositioning. The author distinguishes four themes which have influenced the marginalisation of the juvenile court: bifurcation, diversion, manageralism and legislation of the court.     

Sex and Experience: Modeling the Public’s Perceptions of Justice, Satisfaction, and Attitude Toward the Courts

The purpose of the present study is to examine the influence that sex has on the interconnection between justice, satisfaction with the courts, and attitudes toward the courts. Using national level polling data, the results show that different forms of justice coalesce into a latent measure of justice. Further, the results show that sex differences in our latent measure of justice do exist. In addition, those with experience with the course have a negative attitude toward the court system. Finally, the results show that the impact of justice on attitude toward the court system is partially mediated by satisfaction with the court. Policy implications are discussed.     

THE HEDGEHOG DILEMMA IN THE COURT-MEDIA RELATIONSHIP IN CHINA

This paper explains why Schopenhauer＇s ＂Hedgehog Dilemma＂ may be the most apposite metaphor for the relationship between the courts and the media. Whatever they get from each other, the media＇s role representing the public and the court＇s role representing justice are both essential to modern democracy. Therefore, their relationship has attracted attention, not just in legal and media professions, but also in public and government debate. In the last two decades, China ＇s highest court has issued judicial interpretations and guidelines to regulate the activities of the media and the court, which has brought the topic to a new level of discussion. As a drafter of these official documents, the author will comment on development in this field and their interaction with values inherent to democracy.     

The Double Paradox of Juvenile Justice

This article considers the history of a century of juvenile justice. Illinois 'invented' the separate 'children's court' in 1899 and this concept was spearheaded in Northern America, Great Britain and continental Europe in the first decades of the new century. However, a century after its foundation the future of the juvenile court is in doubt everywhere in the Western world. Some conclude that there is a cyclical pattern in juvenile justice policies. That proposition is rejected in this article. The proposition of a cyclical pattern also presupposes that there is no real problem at stake in treating juvenile offenders. The main point of this article, however, is that juvenile justice cannot escape trying to solve a very complicated foundational issue. This issue is a double paradox, that is, juvenile justice has to solve two philosophical questions: the justification of punishment and the justification of punishment for non-adults. This diagnosis presents a new conceptual framework for an analysis of the history of juvenile justice.     

How Litigants in Dutch Courtrooms Come to Trust Judges: The Role of Perceived Procedural Justice,Outcome Favorability,and Other Sociolegal Moderators

This paper examines the hypothesis that litigants' perceived procedural justice is positively associated with their trust in judges. We argue that although this association might seem quite robust, it can vary across contexts. In particular, we suggest that the nature and magnitude of the association between procedural justice and trust in judges depends on outcome concerns, and other sociolegal moderators such as outcome importance and prior court experience. We tested our predictions in three different types of law cases among 483 litigants at court hearings of the district court of the Mid‐Netherlands. As predicted, our results indicate that perceived procedural justice was positively associated with trust in judges when outcomes were relatively favorable, and that this association was even stronger when outcomes were relatively unfavorable. The courtroom context studied here enabled us to explore how other sociolegal variables moderated these relationships.