司法裁决的后果主义论证

后果主义论证是法律论证的一种形式,是实现合理的司法裁判和证成裁决结论的重要要素。司法中后果主义论证关注不同裁判方式所带来的可能后果,通过评判不同的后果来选择裁决结论。与一般情境中的后果论不同,司法裁决的后果主义论证主要出现在法官为正当化案件裁判所进行的二次证明中,它是基于可欲后果的证立,这种可欲后果是裁决的逻辑后果或一般后果。     

区域大气污染府际合作治理制度框架探讨

区域大气污染问题的凸显以及区域环境协同治理的兴起,必然要求加强政府间合作以应对区域大气污染。落实区域大气污染府际合作治理,重在以《大气污染防治法》(2015年)确定的框架为基础,完善区域大气污染府际合作治理法律制度。基于对现有法律制度的检视,应当加以完善的制度有区域大气环境规划制度、区域大气污染联合执法制度、区域重污染天气应急制度、信息公开和公众参与制度。     

后果主义论辩的证成与具体适用

后果主义论辩是法律论证的一种重要的形式,其存在的目的就是从后果论的角度为规范适用提供"二次证明"。尽管后果主义论辩受到诸多批判,如以损害形式逻辑为代价、引入法官动机破坏法律的确定性、以法律工具主义作为价值预设等,但是后果主义论辩也有其存在的合理性:其作为重要的论证方法,是法官思维的组成部分,也是协调规则安定性与灵活性之间矛盾、解决权利相对性困境的重要方法。基于不同类型的后果,可以将后果主义论辩区分为制度型、目的型、道德型和政策型,这四种类型的后果主义论辩都有独特的适用领域和适用限制。在个案裁判中,后果主义论辩以"显性"和"隐性"的方式存在,作为一种辅助性依据,它在一定意义上可以将法律问题还原为事实问题。然而,受制于人的有限理性、法官的价值偏好,后果主义论辩在适用时需要就个案事实与逻辑后果的相关性进行论证,必要时辅之以其他的论证形式,并对适用的推理过程展开细致的说理。     

A Bi-level Framework for Understanding Prisoner Victimization

Objectives

To present and test an opportunity perspective on prison inmate victimization.

Methods

Stratified random samples of inmates (n ₁ = 5,640) were selected from Ohio and Kentucky prisons (n ₂ = 46). Bi-level models of the prevalence of assaults and thefts were estimated. Predictors included indicators of inmate routines/guardianship, target antagonism, and target vulnerability at the individual level, and several indicators of guardianship at the facility level.

Results

Assaults were more common among inmates with certain routines and characteristics that might have increased their odds of being victimized (e.g., less time spent in recreation; committed violence themselves during incarceration), and higher levels of assaults characterized environments with lower levels of guardianship (e.g., architectural designs with more “blind spots”, larger populations, and less rigorous rule enforcement as perceived by correctional officers). Similar findings emerged for thefts in addition to stronger individual level effects in prisons with weaker guardianship (e.g., ethnic group differences in the risk of theft were greater in facilities with larger populations and less rigorous rule enforcement).

Conclusions

The study produced evidence favoring a bi-level opportunity perspective of inmate victimization, with some unique differences in the relevance of particular concepts between prison and non-prison contexts.     

A Framework for Thinking About Oppression and Its Change

This paper provides a framework for thinking about oppression and how to overcome it. It considers the value premise underlying the use of the term “oppression.” It then discusses the nature of oppression, the forms it takes, and what keeps it in place. In its final two sections, it focuses on awakening the sense of injustice and the strategies and tactics for overcoming injustice. An earlier version of this paper, entitled “Oppression and Conflict,” was presented as a plenary address at the Annual meeting of the International Society of Justice Research in Skovde, Sweden on June 17, 2002. This paper was the starting point of an ongoing, informal seminar on social justice held at Teachers College, Columbia University. The other participants in the seminar included Peter Coleman, Michelle Fine, Beth Fisher-Yoshida, Janet Gerson, Eric Marcus, Susan Opotow, Ellen Raider, Esther Salomon, Janice Steil, and Melissa Sweeney. From the discussions of theory, research, and practice during the meetings of the seminar, emerged plans for a Conference on Interrupting Oppression and Sustaining Justice. Its aim was to stimulate interaction about overcoming oppression among scholars from different academic fields, social and political activists, and graduate students in different disciplines. The Conference took place on February 27 and 28, 2004 at Teachers College. This issue of Social Justice Research presents some papers that were prepared before the Conference (and revised afterwards) and some that emerged from the Conference. Other papers from the Conference can be found under the heading of IO&SJ at the website of the International Center for Cooperation and Conflict Resolution of Teachers College: http://www.tc.edu/icccr/.     

Emotion and the Law: A Framework for Inquiry

This paper draws on research in social and cognitive psychology to show how theories of judgment and decision making that incorporate decision makers' affective responses apply to legal contexts. It takes 2 widely used models of decision making, the rational actor and lens models, and illustrates their utility for understanding legal judgments by using them to interpret research findings on juror decision making, people's obedience to the law (e.g., paying taxes), and eyewitness memory. The paper concludes with a discussion of the advantages of modifying existing approaches to information processing to include the influence of affect on how legal actors reach judgments about law and legal process.     

A Proposal for a Framework Convention on Global Health

This article searches for solutions to the most perplexing problemsin global health—problems so important that they affectthe fate of millions of people, with economic, political, andsecurity ramifications for the world's population. No State,acting alone, can insulate itself from major health hazards.It is for this reason that safeguarding the world's populationrequires cooperation and global governance. What is truly needed,and what richer countries instinctively do for their own citizens,is to meet what I call ‘basic survival needs.’ Byfocusing on the major determinants of health, the internationalcommunity could dramatically improve prospects for good health.A vehicle such as a Framework Convention on Global Health (FCGH)could powerfully improve global health governance. Such a FrameworkConvention would commit States to a set of targets, both economicand logistic, and dismantle barriers to constructive engagementby the private and charitable sectors. It would stimulate creativepublic/private partnerships and actively engage civil societystakeholders. A FCGH could set achievable goals for global healthspending; define areas of cost effective investment to meetbasic survival needs; build sustainable health systems; andcreate incentives for scientific innovation for affordable vaccinesand essential medicines.     

Framework for Analysis of Legal Mobilization: A Decision-Making Model

The American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law on his or her own behalf Without discounting the contribution to our understanding of legal mobilization which has been made by the access-to-justice movement, the author argues that focusing on the poor and the distribution of legal services has limited our understanding of the legal system.
The article presents an alternative analytic framework for examination of citizen use of the law. The model of legal mobilization presented focuses on demands rather than needs, on citizens rather than lawyers or judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawing on the literature and available empirical evidence, the author attempts to analytically clarify the complex process of legal mobilization by organizing relevant variables into a decision-making model that focuses on the individual actor and the factors weighed in deciding whether and how to proceed in mobilizing the law.     

Hearing Voice: A Theoretical Framework for Truth Commission Testimony

The article proposes a new way of thinking through truth commissions by discerning the manner in which they usher in new political configurations through voices and vocalizations. It contributes to our understanding of truth commissions by way of proposing a pragmatic ontology of bonds between the body, voice, and testimony by elucidating the central features that make them vocal assemblages, composed of five sub-institutional capacities: (1) they affect and are affected by bodies in a complex topological relation; (2) they are driven by an apology, which itself proffers a non-human body of transformation; (3) they potentiate reconciliation through spontaneous vocalizations; (4) they are ontogenetic openings that reassemble national pasts, presents, and futures; and (5) they are temporally experiential predecessors to political action. While victim testimony is taken as a historical crowning of the edifice for nations seeking to mend their past injustices, I contend that public reparation flourishes only if the state is open to the alternative orientations the voice proffers—that is, following recent observations of transitional justice, truth commissions have the potential to seek out alternative context-specific forms of justice in place of a universal law of reconciliation. By way of a brief discussion of Aboriginal artist K.C. Adams’ diptych series, Perception, the article proposes that voices pose a nuanced figuration of auto-affection as a communicative possibility towards the (re)presentation and (re)invention of the (survivor) self.     

A Framework for Comparison of Intensive and Special Probation Projects

This paper presents a conceptual framework to consider the activities and outcomes of probation projects. It is based on twenty site visits at which probation staffs described how project activities interrelated to produce desired effects. Based upon comparative analysis of these projects, alternative probation strategies are contrasted in six areas: (1) caseload reduction as a means to increase contact time; (2) in-house versus out-house treatment services; (3) helping relationships and tightened surveillance for probationers; (4) ways to enhance community acceptance; (5) usefulness of attempting to change probationer attitudes versus behaviors; and (6) goals of reduced criminal activity during, versus after, probation. The analysis points up underlying assumptions of probation programs and leads to three recommendations. First, contact character is a more superior measure of probation intensity than is caseload reduction. Second, probation projects should prepare conceptual frameworks to better understand the relationship between project activities and desired outcomes, but they should not be subject to elaborate evaluation requirements. Third, multiple measures of criminal activity allow a more balanced appraisal than is possible with single measures such as revocation rate or recidivism.     

A Legal Semiotics Framework for Exploring the Origins of Hermagorean Stasis

Stasis is a process of classical rhetoric that identifies the core issue in a trial or a similar debate. Hermagoras of Temnos included the first comprehensive analysis of stasis in his second-century BCE treatise on rhetoric, now lost. Modern scholars tend to echo George Kennedy, who maintains that Hermagoras’ inspiration for the hierarchical structure of stasis is indeterminate. This article, however, employs scholarship in legal semiotics, including the work of Miklós K?ncz?l and Bernard S. Jackson, to argue that Hermagoras based stasiastic structure on Aristotle’s first-figure syllogism. Ideally, knowledge of that structure can enhance modern applications of stasis.     

面向政府公共服务的政务微博框架研究

政务微博融合了网络社交媒体和公共管理官方媒体的双重特性,使用便捷、管理简单、影响广泛、信息权威,能弥补传统电子政务的不足,是政府提高公共服务效能的新利器。本文从政务微博的公共服务职能出发,针对当前我国政务微博应用存在的“服务功能破碎”和“服务流程混乱”等问题,对政府公共服务流程重构、政务微博理论模型和政务微博模型的实践路径进行了分析和阐释。在此基础上设计出面向政府公共服务的政务微博框架。     

论外商证券投资法律制度

外商对华证券投资包括投资于境外证券市场与境内证券市场的外资股与债券,其主流则为境内上市外资股(B股)与QFII投资普通股(A股)。外商证券投资的法律制度由投资者本国的法律监管与东道国法律监管两部分构成。前者监管主要针对证券发行数量、税收和利率的限制,后者监管主要集中在证券入市审批和证券交易管理,两者中应以东道国法律监管为主。我国对外商证券投资实行较为严格的监管制度,集中体现为证券市场开放中实行的QFII制度。法律监管的范围涉及市场准入审批、证券发行、证券交易、资产管理和外汇管理等方面。     

Systemic Self-Regulation: A Framework for Trauma-Informed Services in Residential Juvenile Justice Programs

Most youth detained in juvenile justice facilities have extensive histories of exposure to psychological trauma. Traumatic stress plays a key role in their mental health and behavioral problems and needs, and in their safety and rehabilitation and the security and effectiveness of detention facilities. We provide an overview of the barriers to successful provision of mental health services for youths in juvenile justice facilities, including those involving youth, parents, and juvenile justice residential facility staff and administrators. Next, we discuss the relevance and potential utility of approaching mental health needs using posttraumatic stress disorder (PTSD), and more broadly posttraumatic dysregulation, as an organizing framework. Examples of how a posttraumatic dysregulation perspective can enhance juvenile justice residential facility milieus and services are presented, with an overview of traumatic stress intervention models that have shown promise, or potentially could be deployed, in developing and sustaining trauma-informed juvenile justice facilities.