作为非正式行政救济的监察专员制度:比利时联邦的经验

比利时联邦监察专员制度被视为一剂针对行政国家"大政府"的"解毒药"。向联邦监察专员申诉作为一种便捷、可信赖的行政救济,相对于行政复议和行政诉讼是一种补充性的非正式法律救济机制。其对申诉处理的有效性得益于机构独立、程序公正和责任有效的制度保障。当下这些成功的制度条件难以系统移植,但其技术性规则可供借鉴。最为重要的是其成功经验背后蕴含的制度理念能够作为检视和反思信访救济的线索。     

Evaluation of technology transfer by peer review

We report the outcome of an experiment in the field of program evaluation. Because of the rapid outward growth of technology transfer from federally funded laboratories, it was judged necessary to devise a new, yet effective, way of evaluating technology transfer programs and comparing them to conventional research and development projects. Specifically, technology transfer projects within the High-Temperature Superconductivity program of the Department of Energy were subjected to peer review evaluation by a panel of researchers who themselves conduct technology transfer activities. The evaluation criteria and procedures resembled those used for peer review of basic research, but were adapted to the characteristics of technology transfer projects. We include both the viewpoints of a laboratory being evaluated and of the panel chairman. We comment on the degree of success of this evaluation, and draw some conclusions about how it might be modified for the future.     

Maltreatment Chronicity Defined with Reference to Development: Extension of the Social Adaptation Outcomes Findings to Peer Relations

The purpose of this study was to extend work seeking to improve research definitions of chronic maltreatment by contrasting a definition based on patterns of CPS reports across childhood developmental stages to a previously used definition based upon duration of the period including reports, using teacher-estimated peer relations to represent an extrafamilial outcome domain of social adaptation. The sample includes 387 children who are participating in a multi-site longitudinal study and had been reported for abuse or neglect to CPS between birth and age 8. CPS records from this time period provided the basis of two chronicity constructs: 1) an ordinal categories (OC) definition based upon four Eriksonian stages, and 2) a durational definition (time between first and last reports). Block-wise regression analyses were conducted to examine the relative degree to which the two chronicity definitions contributed to prediction of teacher-estimated peer relations at the age 8 interview. Chronicity characterized with reference to developmental stages significantly predicted troubled peer relations, with child age, sex, and minority status, family income, geographic location, and time of first report taken into account. The effect was pronounced with regard to aggressive peer relations. Duration of maltreatment reports also predicted aggressive peer relations, but significantly less so than did the OC definition. The findings support the view that maltreatment chronicity is usefully defined by taking children’s development into consideration to characterize patterns of maltreatment across developmental stages. Practice and research implications are suggested.     

Cognitive biases in the peer review of bullet and cartridge case comparison casework: A field study

ObjectiveForensic judgments and their peer review are often the result of human assessment and are thus subjective and prone to bias. This study examined whether bias affects forensic peer review.HypothesesWe hypothesized that the probability of disagreement between two forensic examiners about the proposed conclusion would be higher with “blind” peer review (reviewer saw only the first examiner’s comparison photos) than with “non-blind” peer review (reviewer also saw the first examiner’s interpretation and proposed conclusion). We also hypothesized that examiners with a higher perceived professional status would have a larger effect on the reported conclusion than examiners with a lower status.MethodWe acquired data during a non-blind and a blind peer review procedure in a naturalistic, covert study with eight examiners (3–26 years of experience). We acquired 97 conclusions of bullet and cartridge case comparisons in the blind and 471 in the non-blind peer review procedure.ResultsThe odds of disagreement between examiners about the evidential strength of a comparison were approximately five times larger (95%-CI [3.06, 8.50]) in the blind than in the non-blind procedure, with disagreement about 42.3% and 12.5% of the proposed conclusions, respectively. Also, the odds that their proposed conclusion was reported as the final conclusion were approximately 2.5 higher for the higher-status examiners than for lower-status examiners.ConclusionsOur results support both the hypothesis that bias occurs during non-blind forensic peer review and the hypothesis that higher-status examiners determine the outcome of a discussion more than lower-status examiners. We conclude that blind peer review may reduce the probability of bias and that status effects have an impact on the peer reviewing process.     

Arnett v. Dal Cielo: peer review confidentiality threatened by medical board investigational subpoenas

If not modified or overturned on appeal, the Dal Cielo decision will very likely have a significant negative impact on the ability of California's organized peer review bodies to conduct frank, candid, and confidential peer review. Dal Cielo appears to permit the Board to subpoena committee minutes, physician credentials files, and live testimony whenever it determines that a physician should be investigated. Further, the impetus for the Board's investigation might be little more than a complaint from a single patient or even a disgruntled former employee of the physician or hospital. Regardless of current and future decisions, however, peer review bodies in California and other states operating under similar court decisions still retain at least some limited means to protect the confidentiality of their evaluative work. If, for example, a peer review body can establish that an investigatory subpoena seeks irrelevant information, is based upon little more than unsubstantiated rumor, or that the medical board has made no efforts to obtain information from other available, non-privileged sources, it may be able to convince a court that the subpoena is not supported by good cause. Peer review organizations should thus consider challenging medical board subpoenas in court to narrow their scope or establish that there is sufficient need for them. If any peer review body is served with an investigatory subpoena by a medical board requesting production of peer review information, it should carefully assess applicable state confidentiality protections.(ABSTRACT TRUNCATED AT 250 WORDS)     

国际税收透明度同行评议及中国的应对

为实施国际税收透明度和信息交换原则而组织的全球税收论坛同行评议是国际税收合作中的新机制。评议中发现在涉外信托、无记名股票和名义持有人三个问题上各国普遍存在信息透明度不足的缺陷。我国作为大陆法系国家,现行的法律法规与论坛所设计的标准也有一定距离,值得引起注意。应当在完善信托税制的实体法律基础上加强获取信托信息的税收征管程序立法,对国内信托和涉外信托分别制定信息申报规则;有必要对公司法第130条进行修订,取消发行无记名股票的规定;制定隐名投资中的名义股东的信息保存法,对名义股东施以信息报告义务。     

Special report on medical staff relationships. Ninth Circuit buttresses peer review immunities

Following on the heels of Austin, the Fobbs and Smith decisions may result in a significant reduction in the number of federal antitrust claims filed by aggrieved physicians in the context of peer review actions. However, by permitting claims of discrimination and conspiracy to go forward in the Fobbs case, the Ninth Circuit may have encouraged the filing of more suits against peer reviewers based on these types of claims, rather than on antitrust theories. In order to benefit from HCQIA's immunities, medical staffs are once again admonished to review, and revise when necessary their medical staff bylaws and peer review policies to provide for adequate notice and hearing, and to assure that peer review participants are well informed about and carefully comply with all of HCQIA's requirements.     

What do Alternative Measures of Peer Behavior Tell Us? Examining the Discriminant Validity of Multiple Methods of Measuring Peer Deviance and the Implications for Etiological Models

Deviant behavior tends to be more strongly correlated with respondents’ perceptions of peer deviance than with actual peer deviance. However, research has yet to discern between two interpretations of this finding. On one hand, respondent perceptions of peer deviance may simply be “biased” indicators of actual peer behavior or alternative measures of one’s own deviance. On the other, respondent perceptions and actual peer deviance may reflect fundamentally separate constructs. The present study uses two separate statistical methods to discern the empirical validity of each interpretation. It then illustrates the importance of the measurement results with a series of cross-lagged panel analyses assessing how a researcher’s operationalization of peer deviance impinges upon conclusions about the bidirectional relationship between personal and peer deviance. Measurement results across two separate behavioral domains (property crime and substance use) suggest that actual peer deviance items reflect a construct fundamentally separate from both personal and perceived peer deviance. Likewise, results fail to support the claim that peer deviance items are simply alternative measures of one’s own deviance. Cross-lagged structural equation results are consistent with the notion that personal deviance affects both later perceptions of peer deviance and actual peer deviance. Yet, null or very weak effects of either peer deviance measure on personal deviance are observed. In light of our findings, we discuss the necessity for new theorizing concerning the complex relations among personal behavior, perceived peer behavior, and actual peer behavior.     

Education and government news

This paper will explore the impact of peer assisted learning on student transition and the creation of a “learning community” by way of a case study of first year law programmes at the University of Ulster. A review of first year law programmes was undertaken to identify whether student expectations were being met and how the first year experience could be enhanced. Students were clearly having difficulty making the transition to university and coping with the independent nature of a law degree. Findings led to the implementation of a peer support scheme for new first year law students in the form of Peer Assisted Study Sessions (PASS) which were used to encourage students on the undergraduate LLB programmes at Ulster to support each other in their learning. The PASS scheme was evaluated and this paper highlights the value of peer support particularly in relation to the transition process and increasing student confidence in their subject.     

Coercion, Cooperation, and Control: Understanding the Policy Impact of Administrative Courts and the Ombudsman in the Netherlands

This article examines the way in which administrative courts and the National Ombudsman in the Netherlands seek to control administrative action, and is aimed at developing a heuristic model that can also be useful in a wider context. Two styles of control will be introduced: "coercive" and "cooperative." An exploratory empirical study was conducted of two administrative agencies, investigating the implementation process of court and ombudsman decisions. This article argues that it is likely that the policy impact of the courts and the ombudsman is directly related to their style of control. More empirical research is needed to evaluate this hypothesis.     

A DUAL‐SYSTEMS APPROACH FOR UNDERSTANDING DIFFERENTIAL SUSCEPTIBILITY TO PROCESSES OF PEER INFLUENCE

The distinct peer‐based perspectives of deviant normative influence and unstructured/unsupervised socializing with friends contend that adolescents rely on different information when deciding to offend, with the former positing that individuals offend after considering the longer term consequences of behavior, and the latter positing that decisions to offend derive from situational stimuli. We argue that these processes can be organized under a dual‐systems framework of decision making, which leads to the hypothesis that individuals at the edges of impulsivity should be differentially vulnerable to these peer influence processes because of their tendency to rely on only one system of decision making. We use two large data sets to test this hypothesis: a nationally representative sample of adolescents from the AddHealth study (N = ～9,000) and a pooled panel data set of adolescents from the Gang Resistance Education and Training (G.R.E.A.T.) evaluation (N = 1,172). The results of longitudinal negative binomial analyses indicate that normative influence by deviant peers has a stronger effect on delinquency for adolescents with low impulsivity than it does for individuals with high impulsivity. Differences in the informal socializing with peers coefficients are less clear and offer minimal support for our predictions.     

Peer‐Reviewed Forensic Consultation in Practice: Multidisciplinary Oversight in Common Expertise

The fallibility of forensic science consultation is an ongoing and major justice concern. Prospective peer‐reviewed forensic consultation has over 10 years of application in American criminal and civil courts, adapting from the traditional oversight of teaching hospitals, rules of evidence and discovery, conventions of testimony of expert witnesses, and attorneys' overall trial strategy. In systematizing heightened oversight, this process ensures greater accountability in forensic science consultation. The integration of peer reviewers' complementary expertise and experience enhances the sophistication and overall quality of assessment. Forensic examination frequently involves the interface of different specialties. Multidisciplinary peer review augments expert proficiency with that of professional peers having different vantage points from relevant scientific disciplines. This approach ensures greater sophistication of a case inquiry, built‐in accountability, and streamlined processes when multiple experts are necessitated. Here, the authors present examples of several cases and the primary and secondary benefits of this collaborative, rigorous, cross‐disciplinary exercise.     

FACTORS INFLUENCING GUN CARRYING AMONG YOUNG URBAN MALES OVER THE ADOLESCENT‐YOUNG ADULT LIFE COURSE*

This paper uses data from an ongoing panel study of urban youth to examine the causes and correlates of hidden gun carrying among young urban males. The analysis assesses the changing impact of gang membership, drug sales, and peer gun ownership for protection on gun carrying at nine separate points over the early adolescent to young adult life course. In early adolescence, gang membership is a strong motivation for gun carrying. At somewhat older ages, drug dealing, particularly high drug sales, and illegal peer gun ownership replace gang membership as the primary determinants of illegal gun carrying.     

Oversight of HMRC soft law: lessons from the Ombudsman

An investigation of the role which the Ombudsman plays in tax law, on which comparatively little has been written, reveals that the body makes an important and distinct contribution. There is now almost universal acceptance that tax law is overly complex and indeterminate. If the primary law offers few answers to the taxpayer, then HMRC’s role as administrator of the system becomes apparent. Soft law elaborating upon how HMRC will apply the primary law to a given class of taxpayers is rendered indispensable. In practice however, HMRC soft law has often been found to be deficient. Analysis of the current oversight arrangements for HMRC soft law immediately reveals the genesis of these issues. Select committees exercise Parliamentary control, whilst an independent body performs external audits. These entities however only incommensurately examine the soft law. Into this void steps the Parliamentary and Health Service Ombudsman, a body which has ‘carved for itself a distinctive niche’ in the public law framework. The paper accordingly seeks to elaborate upon the important role that the Ombudsman plays in scrutinising HMRC soft law and the lessons which can be derived from this analysis.     

Special report on patient care. HCFA finally issues patient-dumping regulations

EMTALA has always been an especially worrisome law for providers because its requirements are both sweeping and vague, with potentially drastic penalties for violations. The new regulations remove only some of the law's vagueness. As with previous EMTALA amendments, all United States hospitals, as well as emergency department physicians and other doctors who see patients in the emergency department, should carefully review their internal policies regarding patient ++ transfers in light of the new regulations. For example, hospitals must have an internal policy for following up on suspicious transfers, as failure to detect an inappropriate transfer can now potentially result in a Medicare decertification action. Also, hospitals with specialized services (e.g., burn units or shock-trauma units) should review their policies on receiving transfer patients in light of the greater specificity of the new regulations. Finally, because of the confusing new requirements regarding ambulance services, all hospitals should review their relationships with and policies regarding, ambulance services and ambulance diversion.     

Removing fuel subsidies: How can international organizations support national policy reforms?

This article investigates how international organizations can support fuel subsidy reform. Departing from earlier studies, we focus on the ability of international organizations to assist national governments directly in the enactment and implementation of national reforms. While international organizations lack the capacity to directly enforce policy or force countries to abolish subsidies, they can increase the cost of reform reversal by governments that have a preference for reform but worry about the credibility and durability of their reforms. Moreover, international organizations can support learning from peers. In practice, governments interested in subsidy reform can announce a public commitment and submit progress reports to peer review by other countries under the auspices of an international organization. We characterize the institutional design of international organizations for success, discuss the role of the civil society in the process, and offer short illustrations from recent efforts by international organizations to promote fuel subsidy reform.     

Special report on medical staff relationships. Handling "impaired" health care professionals

Applying the doctrine of corporate negligence, courts will, in appropriate circumstances, deem hospitals and other institutional health care providers responsible for the quality of patient care in their institutions and for the consequences of negligent physician performance that could have been discovered and prevented. See, e.g., Darling v. Charleston Community Memorial Hosp., 33 Ill. 2d 326 (1965), cert, denied, 383 U.S. 946 (1966); Johnson v. Misericordia Community Hosp., 99 Wis. 2d 709 (1981); Elam v. College Park Hosp., 132 Cal. App. 3d 332 (1982). In such a climate, and with Data Bank reporting now a reality, neither institutional providers nor health care professionals on their medical staffs can afford to ignore problems of practitioner impairment. Recognizing this reality, some state laws now mandate an organized approach--such as the establishment of an impaired practitioners committee--to problems of professional impairment. However, whether state-mandated or not, providers must have policies and procedures in place to insure not only that impaired professionals are referred to available treatment programs, but that they fully participate in and complete such programs, and achieve rehabilitation, before they return to practice at the institution. The earlier detection and treatment are initiated, preferably before peer review action becomes necessary, the better for patients, institutions, and practitioners themselves.     

The state of electroconvulsive therapy in Texas. Part 2: contact with physicians, hospitals, medical liability insurance companies, and manufacturers of stimulus generating equipment

Since mid-1993, all ECT treatments performed in the state of Texas (except for United States government hospitals) must be reported every quarter to the Texas Department of Mental Health and Mental Retardation (TXMHMR) on a data collection form provided by the Department. Part 1 of this paper reviewed that data. This paper reviews the responses to questionnaires and contacts made with physicians, hospitals, medical liability insurance companies, and manufacturers of stimulus generating devices regarding their experience with ECT in Texas. Questionnaires were sent to physicians and hospitals that had not performed ECT during the final two quarters of the review period. Medical liability insurance companies and the manufacturers of the stimulus generating equipment used in ECT were contacted regarding their experience with liability claims. The results indicate that medical liability in regards to the performance of ECT is extremely low. Physicians and hospitals that stopped performing ECT did so for reasons other than medical liability.