Emerging trends in correctional civil liability cases: a content analysis of federal court decisions of title 42 united states code section 1983: 1970–1994Publications received

This research analyzes the decisions of correctional civil liability cases litigated under Section 1983 for the years 1970 through 1994. The analysis provides an examination of 3,205 published United States federal court correctional liability cases brought against correctional personnel in penal and local jail facilities. Longitudinal trends, patterns, prevailing parties, common types of lawsuits filed, and damages and attorney fees awarded are discussed based on the content analysis classification scheme. The analysis revealed sixteen major correctional topic areas where prisoner litigation is likely. High liability issues in corrections are addressed and recommendations are presented.     

试论我国未来民法典中的民事责任制度的体例

传统大陆法系的立法体例是将民事责任规定在债法中,责任与债融为一体,在民法典中并没有单独规定民事责任专章。有的学者认为,民事责任的含义可以分两方面来理解,第一种含义是指某人对他人的权利或者利益不法地加以侵害时,应该受到的民法上的制裁,而这种责任是债务成立的原因;第二种意义是指债务人就其债务而应以其财产为之所承担的担保,这种民事责任是债务成立之后的结果。在很多国家的民事立法中,以有债务即由此种民事责任为原则,所以由此产生的结果就是债务与责任两者经常被混为一谈。然而现代民法将民事责任与债相分离已经是一种不可阻挡的趋势。我国《民法通则》一个显著的特点就是单独就民事责任设立了一章,从而突破了传统大陆法系将民事责任纳入执法的立法体例,可以说,这一设定是我国民事立法的一大特色。本文通过阐述《民法通则》民事责任制度的优点和不足,对之加以扬弃,从而为民法典中民事责任制度的构建提出一点看法。     

Routine Activities and Proactive Police Activity: A Macro-scale Analysis of Police Searches in London and New York City

This paper explored how city-level changes in routine activities were associated with changes in frequencies of police searches using six years of police records from the London Metropolitan Police Service and the New York City Police Department. Routine activities were operationalised through selecting events that potentially impacted on (a) the street population, (b) the frequency of crime or (c) the level of police activity. OLS regression results indicated that routine activity variables (e.g. day of the week, periods of high demand for police service) can explain a large proportion of the variance in search frequency throughout the year. A complex set of results emerged, revealing cross-national dissimilarities and the differential impact of certain activities (e.g. public holidays). Importantly, temporal frequencies in searches are not reducible to associations between searches and recorded street crime, nor changes in on-street population. Based on the routine activity approach, a theoretical police-action model is proposed.     

纽约:警察遇袭身亡事件

现代社会中,警察已成为社会治安的最后一道屏障。如果为非作歹之人连警察都敢杀害,那普通民众的安全更是无法得以保障。然而,美国社会自2014年下半年起,警民关系的紧张与矛盾化,使得警察与社区民众之间已然处于剑拔弩张的阴影之中,在此背景下,2014年12月20日所发生的两名纽约警察被杀事件,更是令民众对于社会安全的信心产生了极为消极的影响。     

Gynaecological cytopathology and the search for perfection: civil liability and regulatory ramifications

The article analyses the potential for false negative and false positive results from Pap smear testing by gynaecological cytopathology laboratories. It also reviews case law in relation to the liability of general practitioners, gynaecologists, cytoscreeners and pathologists in respect of cervical cancer diagnoses. It argues that the concerns expressed in the 1990s about unfair findings of liability against cervical screeners have not been borne out, liability only having been found by the courts where culpable failure to adhere to the standards to be expected of professional behaviour has been established by probative evidence. It argues that the challenge for the future is for cytology screening to articulate definitively where the distinctions lie between acceptable and unacceptable error and for the medical profession and the legal profession to accommodate to the limitations of gynaecological cytopathology.     

Police cooperation in the Southern African region: politics and practicalities

This paper describes some of the issues around which cooperation among police agencies in the South African region have been coalescing. Cooperative engagements have resulted in a degree of harmonisation of policy and standardisation of police training. Within the region too a rhetorical commitment to common values and standards associated with democratic policing is forthcoming. Overall the processes underway are shaped by regional dynamics of a broader socio-political and specific police organisational nature. Structural underdevelopment, the weakness of institutions such as the police and contrarian politics more widely provide the context within which cooperation has evolved. By drawing on documentary analysis and interviews with practitioners in the field, the substantive areas around which cooperation is taking place are outlined. In this account particular reference is made to the role of a regional structure (the Southern African Regional Police Chiefs Coordination Committee) and the national police agency (the South African Police Service) of South Africa, in the evolving business of cooperation in the Southern African region. Research for this paper was made possible through funding received from the Open Society Foundation (SA).

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The Police and the New Magistracy: Independent Members and the New Police Authorities

Independent appointed members to police authorities were introduced as part of the reforms brought about by the Police and Magistrates' Courts Act 1994. This radical change to the make-up of police authorities was defended by government ministers as a necessary reform in order to broaden the expertise and experience available in such bodies. Critics, by contrast, saw the change as a move to further centralise control, and as a means of reducing local democratic input, over policing. Using data from a national telephone survey of police authority clerks, and case studies of three police force areas, this article examines the role of `independent' appointed members to local police authorities. We argue that the early signs are that the new members are becoming well integrated into police authorities, although such bodies have been significantly depoliticised as a result of this and other changes. This revised version was published online in August 2006 with corrections to the Cover Date.     

Medical malpractice in the absence of a doctor-patient relationship: the potential liability of psychiatric examiners in New York State

In New York, psychiatrists (and all physicians) have a duty, in every circumstance with respect to such functions as they are required to undertake, to conduct themselves and all their examinations in a thorough and proper manner. Especially in a forensic setting, psychiatrists must bear in mind that they have a legal duty to perform a competent examination before they render an opinion. It is well established that malpractice liability does not require the preexistence of a doctor-patient relationship based on an undertaking for the purpose of treatment. The author discusses a long line of cases in New York State which holds that psychiatric examiners are potentially liable in malpractice for any breach of duty with respect to those functions that are undertaken. Failure to conduct a proper, careful, and competent examination may result in liability in a variety of areas: competency examinations, commitment proceedings, workers' compensation claims, and so on. Limitations on such malpractice liability are discussed. Unlike some jurisdictions, New York does not accord judicial immunity to psychiatric examiners.     

Controlling Corruption and Misconduct: A Comparative Examination of Police Practices in Hong Kong and New York

Police corruption and misconduct are of perpetual concern to both the police and the public. Various measures have been used and programs created to reduce these problems. But existing research indicates that the effects of such measures are either transient or uncertain. Few studies have been conducted to understand the mechanisms for controlling police corruption and misconduct from an international, comparative perspective. This study intends to fill this gap by exploring the experiences of the Hong Kong Police Force (HKPF) as well as those of the New York Police Department (NYPD). Although Hong Kong is today a part of China, it remains in the Common Law system and its police practices have been highly influenced by Western policing principles, making such a comparison relevant and perhaps useful. The findings of this study suggest that Hong Kong and New York have both adopted various measures for controlling police corruption and misconduct, but have diverged significantly from each other in the structure and content of their control efforts.     

Reinforcing historic distinctions between mental and physical injury: the impact of the civil liability reforms

Mental injury has been differentiated from physical injury since its entry into Australian tort law, with mental injury consistently subject to the most onerous regime. In 2002 in its Review of the Law of Negligence, the Ipp Panel supported the historic distinction between physical and mental injury and recommended further (restrictive) changes to the common law rules in relation to mental injury. This article considers and evaluates the reforms which were introduced into six Australian jurisdictions in relation to mental injury in the tort of negligence in response to the Ipp Panel's recommendations arguing that the rationale for differentiating pure mental injury from physical injury and consequential mental injury is nebulous. It argues that the reforms operate to reinforce and magnify historic distinctions between physical and mental harm despite increasing recognition in the medical literature of the interrelationship between physical and psychiatric injury; despite the recognition of the professional ability of psychiatrists and psychologists to accurately pinpoint and diagnose mental injury; despite extensive documentation of the far-reaching and devastating impact that psychiatric injury has on victims, families and the community; and despite evidence that early and adequate treatment of mental injury can prevent a raft of damaging and costly personal and societal consequences.     

Women in Policing: A Longitudinal Assessment of Female Officers in Supervisory Positions in the New York City Police Department

This study examined the growth in the number of female officers in supervisory and command positions (i.e., sergeant to bureau chief) in the New York City Police Department (NYPD) from 2000 to 2013. Time and annual percent changes in the number of male officers, the number of male officers in supervisory and command positions, and the number of female officers served as predictors. An ordinary least squares regression analysis failed to produce statistically significant results for the growth in the number of female officers in supervisory and command positions. The regression analysis also produced statistically nonsignificant results for changes in the level of disparity among male and female officers in supervisory and command positions. Over the past 13 years, female officers have made little progress in advancing to supervisory and command positions in the NYPD.     

Researcher liability for negligence in human subject research: informed consent and researcher malpractice actions

Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a duty of care analogous to the special relationship between physicians and patients. The federal regulations should provide the minimum standard of care for informed consent in human subject research, and complying with them should be a partial defense. In contrast, expert testimony should establish the standard of care for researcher malpractice, and IRB approval should be a partial defense.     

New York State of Mind: Parental Incarceration and Children's Visitation in New York State

The incarceration of a parent has a variety of negative effects on a child's psychological, academic, and developmental success. Children can end up in foster care as a result of the state terminating parental rights due to the parent's incarceration. Despite imprisonment of their parent(s), maintenance of visitation with the parent(s) is still important for their children. However, not all prisons have visitation programs that are suitable to visiting children. This Note proposes a model state statute that will recognize the importance of visitation, implement “child friendly” visitation programs, facilitate training for prison staff, and provide transportation for children in major cities to the prison facilities.     

虚假陈述的监管与信息披露担保--基于虚假陈述民事赔偿责任的若干思考

信息披露制度是现代证券市场的重要基石,而虚假陈述则是发行人对信息披露义务的严重违反.为能有效地将虚假陈述拒于证券市场之外,除了由证券监管机关在各个环节层层把关,要求发行人严格履行信息披露义务之外,更应引入虚假陈述担保制度,由虚假陈述担保人就信息披露文件的虚假陈述与发行人承担连带赔偿责任,同时引入推定过错和推定因果关系理论,实现投资者追究信息披露担保人虚假陈述赔偿责任的可行性和合理性.     

职场性骚扰雇主责任的法经济学分析

职场性骚扰雇主责任就是雇主要为其雇员的性骚扰行为负责任。通过法经济学的分析,对于监督管理者雇员实施的交换型性骚扰雇主承担严格责任;对于敌意环境型性骚扰雇主承担过错责任。这对预防与抑制职场性骚扰更有效率,同时,可以使社会成本降到最低。