Mediation,financial remedies,information provision and legal advice: the post-LASPO conundrum*

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.     

中国法律援助制度的现状及其完善

加入WTO使我国刚刚起步的法律援助事业面临更大的挑战,要将中国法律援助制度构建成为既 能适应WTO规则的要求,又切合我国的国情实际的人权法律保障制度,应将法律援助经费纳入 政府的财政预算,建立法律援助公职律师制度,并通过制定统一的《法律援助法》对法律援助的相 关问题予以明确。     

The impact of cuts in legal aid funding of private family law cases

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made deep cuts to legal aid in the UK from April 2013, withdrawing state aid from almost all private family law cases. The paper is based on the findings of a micro-study of solicitors and Citizens Advice Bureaux (CABx) in Kent and London to investigate the impact of LASPO cuts on their work. The findings suggest that: legal aid firms have closed or merged; legal aid work is often partially carried out in solicitors’ own time; ‘unbundled’ services for litigants in person (LIPs) are increasingly common; and family cases are being complicated and extended by the new ubiquity of the LIP. Respondents suggest that litigants may increasingly be ‘giving up’ on pursuing their cases, with clear implications for financial justice and contact with children. Further research is needed into the financial and affective impact of the cuts and the distribution of losses and difficulties between genders. The study, however, suggests the likelihood of post-separation poverty, debt and capital losses increasing in the post-LASPO environment, and that firms and CABx are having to find various methods of dealing with clients abandoned by the state.     

Analysing the economic justification for the reforms to social welfare and family law legal aid

The Ministry of Justice plans on saving £450 million per annum from the legal aid budget through reforms contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.Over 60% of these savings will be found by removing whole areas of law and types of problem from the scope of legal aid support. One of the principal justifications for these reforms is the economic imperative; reducing legal aid expenditure is necessary to meet the Government's fiscal targets. This article examined whether these reforms will generate the substantial savings identified in the Government's impact assessment, or whether these costs will be passed on to other areas of government. Data from the Civil and Social Justice Survey were used to model the behavioural responses of people no longer eligible for legal aid under the scope changes. Economic costs were estimated for these responses where they will be incurred by the state, although many of these costs are likely to be underestimates. Many costs could not be estimated including, inter alia, the cost of increased criminality where people seek redress outside of the justice system. The analysis focused on family and social welfare law, which together represent 82% of the proposed savings from the scope reforms. Based upon this analysis, the Government is unlikely to save more than 40% of its prediction. At the same time, these minimal savings could generate inequality of access to justice and overburden an already struggling alternative advice sector. A significant uptake in funded mediation within family law is predicted.     

Redesigning the Family Law System to Promote Healthy Families

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful cutting‐edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase public access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution processes will serve family health and promote peace.

Key Points for the Family Court Community:
• Evolving family constellations, private ordering through pre‐ and postmarital agreements, an increase in self‐represented litigants, and shrinking judicial resources are changing family law dramatically.
• Thoughtful, practical process reforms are needed in order to accommodate these changes.
• Practitioners should be proactive about seeking out and implementing such reforms.
• Some reforms already finding success include family relationship resource centers, informal domestic relations trials, licensed legal technicians, and unbundled legal services.
• We outline a protocol with a proven track record of success for implementing cutting‐edge family law reform.

     

FAMILY SUPPORT AND MAINTENANCE: EMERGING ISSUES IN SOME DEVELOPING COUNTRIES WITH MIXED JURISDICTIONS

Family support and maintenance laws in several developing countries with mixed legal traditions derived from colonial and local laws are based on a litigation model. This model often fails to give adequate legal relief in the socioeconomic context of poverty. The situation is made worse by inequitable and gender‐biased inheritance laws. This article will use examples mainly from countries in South Asia and Commonwealth Africa to demonstrate how reformist legislation and constitutional jurisprudence in the area of public law and judicial activism highlight the issues that must be addressed if the legal system is to provide an effective system of family support and maintenance.     

Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

The provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) will remove almost all immigration cases from the scope of legal aid with effect from 1 April 2013. Part One of this paper describes the expected changes LASPO 2012 will make and then explores their anticipated impact. It explains that large numbers of migrants and their family members are likely to be without legal advice and representation after April 2013, including in cases where the state-enforced removal or deportation from the UK of a parent is contemplated, with the consequence of separating parent from child. Part Two explores the possibility that an ‘exceptional case determination’ might provide a route back into legal aid funding, and finds that this is likely to be restricted, in immigration cases, to those making applications relying on Article 8 ECHR and who can demonstrate a particular and individual requirement for legal aid. Part Three explores the rationale for these changes, and concerns about access to justice for migrants and their family members in cases involving acute interference with rights to family and private life. It places these concerns in context, specifically the fundamental and restrictive amendments to the Immigration Rules relating to family migration introduced from July 2012. These amendments are enormously complex and their full legal implications have yet to be tested in the higher courts. Part Four questions whether the changes will in fact achieve their stated aim of cost savings or whether the costs will simply be transferred to other parts of the State (especially to the Tribunal system, in dealing with litigants in person). The paper additionally questions, in Part Five, whether the regulators are equipped to regulate the quality of the fee-charging immigration advice services to which at least some individuals will turn. The paper concludes that, at the very least, it is particularly harsh that the Government has removed the ‘currency’ of legal aid at this time, so that those with limited financial resources have neither access to legal aid advice about the meaning of those Rules nor legal aid representation to test their proper interpretation.     

公私法的划分与法的内在结构

公私法的划分是法理学的基本问题之一 ,也是建设中国特色社会主义法律体系必须解决的一个基本问题。本文回顾了公私法划分的历史 ,评析了学者们关于公私法划分的根据 ,对公私法的含义进行了新的阐释 ,认为公私法的划分是法的内在结构问题 ,划分公私法的直接根据是法律调整的不同方法 ,而法律调整的方法 ,基本上或主要地决定于法律调整的对象。明确这一问题 ,有利于澄清长期困扰法理学界的一些重要问题 ,以便根据法律调整对象的不同和实际生活的需要 ,选择最佳的法律调整方法 ,这对建设中国特色社会主义法律体系具有重大的指导意义     

When legal rights are not a reality: do individuals know their rights and how can we tell?

Public knowledge of rights has been the subject of a number of empirical enquiries over the last decade. In England and Wales, knowledge of rights and its relationship with an individual's capacity to ‘self-help’ and ‘self-represent’ when faced with a civil justice problem has become the subject of renewed attention following changes to legal aid which, from March 2013, will see the availability of legal advice and representation dramatically reduced. Previous studies focusing on public knowledge of rights in this (and other) jurisdictions have illustrated a lack of knowledge amongst the general population and more specifically, a widespread tendency of individuals to assume that the law aligns with their own moral, ethical or social attitudes. However, many of these studies have also suffered from methodological shortcomings. In attempting to address some of these shortcomings this study uses an open-ended format to ask individuals with one or one or more civil or social justice problems to describe their rights/legal position. We find that whilst an open-ended question approach to exploring knowledge of rights yields insight not acquired by other formats, its utility is constrained by difficulty reconciling articulation and actual knowledge of rights. We discuss the implications of these findings as they relate to the development of future research in the field of family and social welfare law, Public Legal Education (PLE) and access to justice post-March 2013.     

法律援助制度的几个问题

中国法律援助经历了从 1 994年初起发展到今天的过程。法律援助的概念有广、狭二义之分 ;其性质是法律之助 ,即援助公民个人或者人民法院不向受援人收费或者少收、缓收从而在法律方面提供帮助以维护其合法权益的行为。法律援助的特别包括 :具有国家、社会承担援助的公助性 ;受援人享受法律援助的无偿性和优惠性 ;律师、公证员等提供帮助的法律专业性。法律援助的理论基础有四 :权利保障之要求 ;实现控、辩双方力度平衡之条件 ;司法公正之所需和扶贫助弱法制化发展之必然     

海难救助的性质与法律适用

对于如何认识海难救助的性质,目前存在不同的学术观点,海难救助可根据不同标准划分为不同种类。强制救助的形式属于行政救助,具有强制性和公法的性质;契约救助和雇佣合同救助则具有合同的性质;纯救助则具有无因管理的性质。因此,笔者认为,应该根据不同类型海难救助种类来解决海难救助法律冲突,根据它们不同的性质确定所适用的准据法。目前,我国《海商法》和相关法律规范对海难救助的法律适用原则和规则并没有作出明确的规定．亟待填补这一法律空白。     

论“大民事”

我国法院系统关于取消经济审判庭的“大民事”改革 ,实际上是向公、私法严格分野的“小民事”的倒退。司法真要改革 ,就要确立官民合作、“民行 (政 )”相容、实事求是、公平和诚信的理念。适应市场经济及其法治要求的理念确立了 ,相应的法和司法制度设计问题也就迎刃而解了。     

Is state power to protect health compatible with substantive due process rights?

Public health laws may mandate drastic limitations on individual liberty, such as forced medication and quarantine. This results in a tension between public health laws and guarantees of liberty such as the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court has resolved this tension in favor of one or the other of these legal principles, depending on the facts and issues involved. Nevertheless, Supreme Court jurisprudence is internally consistent. The Court has applied a level of scrutiny that, while rigorous, is more flexible than strict scrutiny. I denote this as "enhanced public health scrutiny." Applying this scrutiny, the Court will uphold public health legislation if it protects an inchoate class of people who may not yet be identifiable, who will incur a specific disease or injury absent the law, but who will not experience this disease or injury if the law is enforced. If this doctrine were explicit, it would constitute a clear guideline to courts seeking to balance health and liberty concerns. This guideline would be consistent with current case law, and would not impact on law affecting reproductive liberty.     

FAMILY COURTS-20 YEARS AFTER REFORM

The Rt. Hon. Dame Elias discusses the changes the people of Australia and New Zealand have seen and can expect from their respective family courts. She goes on to say that if judges of the family court are to play a more positive role in society, they need to stay abreast of what is happening with current legal trends as they relate to the "best interest of the child" standard, equal rights (especially between genders), and changing international trends in family law. The Chief Justice also addresses problems concerning lack of legal aid funding and an increase in unrepresented litigants. The Chief Justice explains that these issues and problems can best be dealt with through legislative reform as well as family court reform. Where there is an influx of additional resources better preparing judges to deal specifically with those seeking justice in the family court, these additional resources should also lead to a greater general understanding of current trends in the community. Chief Justice Elias asserts that without community support, these issues cannot be resolved.     

Management of legal information in an international context: A conundrum of challenges and opportunities

Evolving technologies have created many exciting opportunities to increase the availability of legal information, and to facilitate the organization and publication of this information. With the globalization of almost all legal issues, increased access to primary and secondary resources in electronic format across jurisdictional lines has been a welcomed development by academics, lawyers, international business entities, and others. However, the myriad of legal systems and approaches to maintaining legislative and judicial records has led to a host of challenges in regard to coherent and efficient management of legal information. Focusing on development of legal information systems in China and the United States, this paper will open with a summary of the exciting current and emerging technological advances in legal research methodologies and in the electronic publication of cases, statutes, regulations and other critical resources. The paper will then analyze corresponding challenges, including authenticity, accuracy, currency and consistency. The analysis will include discussion of the varying quality of legal information resources proliferating in the Internet, as well as the host of issues surrounding electronic publishing of legal information by government entities and commercial enterprises. The paper will conclude with a prospective analysis of the manner in which emerging technologies can enhance knowledge management of legal information and strengthen legal systems in both common law and civil law jurisdictions.     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

Toxic Torts, Public Interest Law, and Environmental Justice: Evidence from Louisiana*

Poor and minority communities facing environmental hazards have increasingly turned to legal strategies to seek redress but a divide has emerged in these cases and their outcomes. Some aggrieved communities turn to private injury lawyers, while others secure representation by public interest groups, such as Earthjustice, the Southern Environmental Law Center, or university law clinics. Is justice being equally served in these cases? We analyze the impact of toxic tort versus legal aid approaches in determining the outcome of environmental justice struggles using four landmark cases from Louisiana in the context of other factors that appeared important in determining how these cases resolved.     

网络时代物权法的几个基本问题

以开放、自由、高效为特征的互联网络已经并将继续对现行物权法的价值理念、公示制度、物权变动模式、物权法的体系等基本理论问题提出挑战.根据"法律是社会经济生活的反映"这一要求,网络时代的物权法应该以自由和效率为其基本价值理念,在此基础上,现行法定主义物权立法模式应该向意思主义并注重效率的立法模式转变;同时,现行动产、不动产分别实行不同公示方法的二元制公示方法在网络时代将被统一的网络登记制度所代替,由此,物权变动模式也应该实行公示对抗主义;另外,统一的网络公示制度也将对现行物权法的体系产生一定的影响.     

实践理性与疑难案件的法律适用——基于“实践法律观”的一种补充

当前在疑难案件中,法律的正确适用是司法的核心问题及公众关注的焦点。但由于＂法律观＂的差别,使得疑难案件的法律适用存在诸多问题。从学术史及方法论角度看,学者们处理疑难案件有各种方法,但最终都依赖对＂法＂的正确认识及案件事实与法律规范之间的关系的澄清。只有在个案事实与规范的融贯中,在实践理性理论框架内,通过类推等方法,发现、鉴别法律规范才能使疑难案件得以恰当处理。     

网上支付中的民事责任研究

最高存储金额限制可以有效控制电子货币网上支付风险,但银行卡中的风险承担问题比较复杂.经济分析、比较研究和法学分析的结论是,我国银行卡风险承担规则应建立在有"责任限制"的无过错责任之上.未获授权使用时持卡人承担的责任应限制在1000元以内,至于超过限额以上的损失由发卡银行承担.