The professional responsibility of lawyers: emotional competence, multiculturalism and ethics

Traditional legal education and the Socratic method it utilises are by and large successful at training lawyers to think, reason and analyse. The cultivation of lawyers' intrapersonal and interpersonal skills, however, has been, at best, neglected by the profession. All lawyers, like all human beings, are emotional. Emotions affect who they are and how they practise law, whether or not they are conscious of them. As emotions cannot be removed from the practice of law, it is essential that lawyers learn to understand and manage their emotions, as well as learn to be attuned to their clients' emotional lives. Ignorance of concepts such as countertransference, denial and unconscious bias adversely impact the lawyer-client relationship. Lawyers who understand basic psychological principles and behaviours, who are aware of their own psychological makeup, understand their cultural perspective and recognise and credit their clients' differences, will enhance their effectiveness as counsellors. The client whose lawyer has these competencies will enjoy a therapeutically superior counselling or representational experience. The neglect of either the lawyer's or the client's emotional life threatens to sabotage the lawyer's ability, and thus professional responsibility, to render competent and impartial legal advice. Through drawing parallels to the training and practice in other counselling disciplines and relationships, this article argues that psychological-mindedness and multicultural competence are essential elements of ethically responsible legal representation.     

法官职业道德建设：一个伦理学的解读

法官职业道德是指基于法官职业特性,在长期司法实践中形成的对全体法官具有普遍约束力的价值观念、行为规范和风俗习惯的总和,它鲜明地表现为程序性,与特定社会的道德不完全相容。当前我国法官职业道德建设存在如下一些问题:法官职业道德建设与其实践基础相脱节;法官职业道德教育的目标定位过高,以为道德教育就可改造法官为道德人;重视法官职业道德的工具性而轻视它的自目的性,致使一些法官缺失职业道德信仰。要正确推动我国法官职业道德建设,我们应当:尽快实现法官职业化,夯实职业道德的实践基础;完善法官职业道德制度化机制,促进法官职业道德自成目的性;提高法官薪金,以利益机制促进法官遵守职业道德。     

Transcending the dilemma of “public interest”

This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the case-law history of the United States starting from the source of US government’s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”, which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest” to institutional construction, and should make the National and Local People’s Congresses and their standing committees to play major roles in deciding taking and compensation schemes. __________ Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45     

The politics of managed competition: public abuse of the private interest

The doctrine of managed competition in health care sought to achieve the social goals of access and efficiency using market incentives and consumer choice rather than governmental regulation and public administration. In retrospect, it demanded too much from both the public and the private sectors. Rather than develop choice-supporting rules and institutions, the public sector has promoted process regulation and benefit mandates. The private health insurance sector has pursued short-term profitability rather than cooperate in the development of fair competition and informed consumer choice. Purchasers have subsidized inefficient insurance designs in order to exploit tax and regulatory loopholes and to retain an image of corporate paternalism. America's health care system suffers from the public abuse of private interests and the private abuse of the public interest.     

C. Wright Mills and higher immorality: implications for corporate crime,ethics, and peacemaking criminology

During the past decade, there was a resurgent tendency in criminology to explain emerging patterns of crime within the United States by referring solely to dysfunctional families or dysfunctional individuals. Other criminologists questioned these latter approaches as detaching individuals and crime from the social institutions that envelope them. In light of this recent attempt to link crime to social institutions, it seems fruitful to revisit the work of one of the most astute analysts of institutional structure: C. Wright Mills. Hence, this article begins with an overview of Mills’ sociological perspective and then shows how it provides useful insights into institutional sources of illegal behavior. The article also illustrates ways the Millsian perspective can be directly applied to an analysis of corporate crime in relation to other forms of crime emanating from the structure of contemporary U.S. society. After that, the article explores how the Millsian perspective can broaden understanding of the growing decline of ethics within America’s leading industries, governmental agencies, and the justice system. The article concludes by addressing policy implications, particularly in regard to the prospects of linking the Millsian perspective with basic tenets of peacemaking criminology.

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The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

Professional ethics and professional morality in the assessment of competence for execution

Four psychological perspectives need to be considered in response to the Richard Bonnie outlook on competence for execution. The first perspective is the degree to which the task itself is ambiguous and thus allows individual clinicians' values to leak through. The second perspective is that prisoners' choices to opt for execution instead of appeal are murky and often irrational. The third perspective is that even rational decisions for execution instead of appeal are often not founded on informed judgments, in part because of the situational influences of living on death row. The fourth perspective is that clinicians' judgments to participate in such legal-psychological activities are not only a matter of individual morality but also part of evolving professional ethics.