论释明的具体化:兼评《买卖合同解释》第27条

释明在两大法系主要国家的存在形式有别,但其功能与价值有共通之处,即追求实质正义与程序正当的统一,实现"该胜者胜诉,该败者败诉";保障当事人的程序主体性,避免"突袭性裁判";促进纠纷在一审程序中"一揽子"解决,提高裁判结果的可接受性从而提升诉讼效率。释明要求法官是中立的裁判者,但不是旁观者,其理念与规范在我国民事诉讼立法、司法解释及规范性文件中已有初步体现,尚待进一步科学化与体系化。当前亟需明确释明的具体对象与界限,健全释明的激励与约束机制。释明的方式是审判的艺术,对法官的素养有较高的要求。     

Reviewable Automated Decision-Making

In this paper we introduce the concept of ‘reviewability' as an alternative approach to improving the accountability of automated decision-making that involves machine learning systems. In doing so, we draw on an understanding of automated decision-making as a socio-technical process, involving both human (organisational) and technical components, beginning before a decision is made and extending beyond the decision itself. Although explanations for automated decisions may be useful in some contexts, they focus more narrowly on the model and therefore do not provide the information about that process as a whole that is necessary for many aspects of accountability, regulatory oversight, and assessments for legal compliance. Drawing on previous work on the application of administrative law and judicial review mechanisms to automated decision-making in the public sector, we argue that breaking down the automated decision-making process into its technical and organisational components allows us to consider how appropriate record-keeping and logging mechanisms implemented at each stage of that process would allow for the process as a whole to be reviewed. Although significant research is needed to explore how it can be implemented, we argue that a reviewability framework potentially offers for a more useful and more holistic form of accountability for automated decision-making than approaches focused more narrowly on explanations.     

Infants Exposed to Intimate Partner Violence: Issues of Gender and Sex

A review of the literature finds that the development of infants exposed to intimate partner violence (IPV) may vary across sex as boys display more externalizing behavior, while girls show more internalizing behavior. Given this trend, gender- and sex-based analysis (GSBA) may play a critical role in understanding and improving the adjustment of these infants. Researchers are often encouraged to include gender and sex into their analysis, though they are rarely afforded appropriate direction in this process. The intention of this article is to provide guidance in GSBA for research on infant development in families affected by IPV. We present a discussion on GSBA, a review of the literature, explanations for differences in male and female infant development, a set of research priorities, and directions for future work. Findings suggest that a better understanding of the complexities in the adjustment of violence-exposed infants through GSBA may promote childhood development.     

The relationship between the quantity of alcohol consumed and the severity of sexual assaults committed by college men

Researchers have suggested that intoxicated perpetrators may act more violently than other perpetrators, although empirical findings have been mixed. Past research has focused on whether or not alcohol was consumed, rather than the quantity consumed, and this may explain these inconsistent findings. The authors hypothesized that the quantity of alcohol consumed would have a curvilinear relationship to the severity of the assault. Data were collected from 113 college men who reported that they had committed a sexual assault since the age of 14. The quantity of alcohol that perpetrators consumed during the assault was linearly related to how much aggression they used and was curvilinearly related to the type of sexual assault committed. The quantity of alcohol that victims consumed during the assault was linearly related to the type of sexual assault committed. Strategies for improving assessment of alcohol consumption in sexual assault research are discussed.     

Punitive Restoration and Restorative Justice

Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.     

Decision Making at the Firm Level: The of a Criminal Legal Aid Case Management System

The Criminal Legal Aid System, in Scotland as in England, is under severe economic strain. A key element in the legal profession's response should be reliance on IT in improving the efficiency of criminal legal aid case management. This paper is a work-in-progress report on our involvement (under a Teaching Company Scheme Project) with a Glasgow criminal practice and their use of an existing case management and automation tool. Although the focus of the research is on improving the scope of the present system, our work has involved us in an exploration of decision-making processes at the level of the firm and the role of computerisation and automation at all levels in the firm. More specifically, our investigations focus on the interaction of the fee earners and paralegals in the use they make of information and how, applying management science techniques, they could improve on that use. This in turn led to a reconsideration of how the case management system uses information available to the differing levels of “decision makers” within the firm. This creates an interesting contrast with the “decision making” process at the level of adjudication.     

Fibers under fire: suggestions for improving their use to provide forensic evidence.

The current emphasis on DNA technology in forensic science has led many to believe that trace evidence examinations, including fibers, may be of little value. Reasons are given here to show that this is an erroneous assumption. In the face of this situation, fibers examiners have been challenged to consider ways in which they can improve the services they offer to the Criminal Justice System not only by increasing the efficiency of the examinations, but also by expressing the evidential value of the findings in a clearer way. The separate stages within fibers casework from evidence collection to report writing are critically examined. Suggestions are made on how improvements may be achieved. Areas where particular progress can be made include improving communication and exchange of information between the investigator and the scientist and streamlining analysis by using the latest equipment in conjunction with effective case management. In addition, ways of making better use of existing data pertaining to fiber frequencies, accumulating new data by using the resources of working groups, and improving training procedures with respect to evidence interpretation are discussed.     

Police officers' perceptual distortions during lethal force situations: Informing the reasonableness standard*

Research Summary In 1989, the U.S. Supreme Court held that determinations about the constitutional appropriateness of police force usage—deadly or not—must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Although the Court's ruling established a clear standard for judging officers' actions (i.e., the perspective of a reasonable police officer on the scene), we know little about the sorts of factors that might frame the perspective of reasonable police officers during situations in which they apply force. This article presents the results of a study that examined 80 police officers' detailed accounts of how they perceived what transpired during 113 incidents in which they shot citizens. Respondents reported experiencing a wide range of sensory distortions, with the vast majority of officers reporting two or more distinct sorts. This study takes these findings as a point of departure to expand our understanding of what constitutes a reasonable officer's perspective during the tense, uncertain moments during which he or she makes the decision to employ deadly force. Policy Implications Given that officers are likely to experience multiple distortions during shootings, the findings have implications for civilian and police oversight policies. In particular, those responsible for reviewing police shooting incidents should take into consideration that officers' behavior will not always be based on the objective reality of what is occurring at the time they decide to pull the trigger, but rather an altered conception of it. Such an understanding is crucial to improving the image of police in certain communities and positively impacting citizen trust of, and satisfaction with, the police.     

从“中国之制”看“中国之治”——应急状态下的国家治理思考

“中国之制”源于“中国之治”的实践之中,二者相互依存,共同演进、互为表里。处在新的历史起点上,不同社会制度、发展模式的竞争较量更为尖锐复杂,只有不断完善“中国之制”,才能战胜各种风险挑战,为完成历史赋予的时代使命提供制度支撑,开创“中国之治”的新阶段、新境界。     

Foe or Friend of GATT Article XXIV: Diversity in Trade Remedy Rules

While the WTO Member countries continue to increase their FTAarrangements with divergent frameworks, they have begun to adoptmodified WTO trade remedy systems in FTAs. Although the contentand degree of these modified systems may not be significantyet, they still set very important precedents, or ‘seeds’,for ‘rule diversification’ in the world tradingsystem. Such modification typically aims to further liberalizemutual trade between FTA parties and thereby contribute to afreer world trading system. However, such rule diversificationappears to be inconsistent with the mandate of Article XXIVof GATT by worsening economically inferior trade diversion.The reinterpretation of the legal obligations in Article XXIVcommensurate with economically more reasonable structures impliesthat trade remedy rules in FTAs should be applied on a non-discriminatorybasis. Moreover, an FTA safeguard measure must precede a WTOsafeguard measure to ensure optimal competitive conditions amongtrading partners. In sum, the right channel for improving thecurrent WTO trade remedy systems is not the FTA forums but theWTO negotiation.     

Family strategies concerning migration and occupations of children in a market-oriented agricultural economy

This study focuses on family labor strategies in the 19th and early 20th centuries, using a database containing vital information on the lives of some 3000 persons born around 1830, 1850, and 1870 in the Groningen clay soil region—a predominantly agrarian area in the northern part of the Netherlands. Working-class families were moving from short-term survival strategies to long-term investment strategies in the last decades of the 19th century. Like other occupational groups, they tended to keep their children at home in larger numbers instead of finding them jobs as live-in workers—a change probably facilitated by improving real wages. Although such a change in family strategy implied lower earnings in the short run, children who stayed home experienced more upward social mobility in later life than those who left home early to become live-in servants. The increased preference for long-term investment strategies is also apparent in migratory patterns. Independent of the phases in the family cycle, working-class families became more inclined to migrate over longer distances, especially to America where unskilled laborers had better prospects.     

Cops and cameras: Officer perceptions of the use of body-worn cameras in law enforcement

PurposeThere has been a recent surge in the adoption of and media attention to the use of body-worn cameras in law enforcement. Despite this increase in use and media attention, there is little to no research on officer perceptions of body-worn cameras.MethodsThis study relies on baseline data of officer perceptions toward body-worn cameras collected from surveys administered to Orlando Police officers who are participants in a randomized experiment evaluating the impact of body-worn cameras (Taser AXON Flex) in law enforcement.ResultsResults suggest that police officers are, by and large, open to and supportive of the use of body-worn cameras in policing, they would feel comfortable wearing them, and that they perceive a potential for benefits of body-worn cameras in improving citizen behavior, their own behavior, and the behavior of their fellow officers.ConclusionsOfficers are generally supportive of body-worn cameras, and they hold perceptions that these devices can be beneficial in positively affecting relevant outcomes. Study limitations and implications are also discussed.     

Child witness research and forensic interviews of young children: A review

In this article, we provide an introduction to child eyewitness memory issues that are frequently discussed and debated, both within the research and practice communities. We review several of the central areas of research on child eyewitness memory and some of the most promising protocols aimed at standardizing and improving child forensic interviews. We focus primarily on memory in young children, because they pose particular challenges. Research on the use of props and external cues to prompt young children's memory is discussed. We also review research on professionals' knowledge and attitudes about children as witnesses. It is concluded that we must guard against overly negative or overly optimistic views of children's abilities.     

Active living as an institutional challenge: lessons from the Robert Wood Johnson Foundation's "Celebrate Fitness" program

Native American youth suffer disproportionately from a range of adverse health conditions. Empowering youth leaders to work on community-based solutions has proved effective in reducing tobacco use and gun violence and is now emerging as a promising approach to improving fitness and health. This article, based on direct observation and interviews with key informants, examines the implementation of a Robert Wood Johnson Foundation-funded project that gave tribal youth councils minigrants to design and run diverse projects that encourage physical activity in their communities. The article highlights the institutional challenges that confront health-promotion strategies for disadvantaged populations. Unless they take proper account of organizational, political, environmental, and cultural forces, funders' interventions have limited chances for success and sustainability.     

司法判决与其他案例中的法律推理方法研究──说理的艺术

法律推理是一种说理的艺术。法律推理的难题是在不可能讲理的情况 下讲理、与“不讲理的人”讲理;既要法官能动地审理案件,又要防止法官专横审理。法律 推理的目的是寻求以法律为根据的正当理由。演绎推理、归纳推理、辩证推理是法律推 理的基本方法;它们按照不同的思维路径与规则寻求推理结论,但都面临其自身无法解 决的问题。法律价值在解决这些问题中具有主导性、基础性的作用。法官的法律价值判 断行为非常重要,从人类学的角度看这是一种四维框架中的判断行为。规范说理的艺术 可以防止法官在法律推理中的任意、专断,其方法包括培养法律感觉、进行法律价值判断 的合理化作业,养成法律惯例和法律信念,完善法律推理的制度与规则保证等,最终,法 律推理应当以人为本。     

论劳动力权--兼评职工持股制度

劳动法与劳动合同所确认的劳动权 ,只是说明了劳动力成为商品这一现实的社会关系 ,却并未揭示出劳动价值论 ,也未能反映劳动者应当分享企业治理权与剩余权的根本要求。应当建立分享企业治理权与剩余权的劳动力权 ,达致劳动力与资本的契合和均衡。劳动力权属于经济法范畴。作为其实现形式的职工持股制度 ,需要进一步完善。     

Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales

Professions are granted a form of cartel that enables them to charge more than would arise in a free market on the assumption that they provide better quality and are more trustworthy than free-market actors would be. The theoretical assumption that lawyers are more competent than nonlawyers has given rise to significant formal protections for professions in many jurisdictions. Two testable propositions arise from this theory: (1) lawyers cost more, but (2) they deliver higher quality. It is a testing of these twin propositions that is the subject of this article, with well-triangulated data and a deeper understanding of the theoretical differences between lawyers and nonlawyers.     

Patients as consumers: courts, contracts, and the new medical marketplace

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's once promising answer--managed care--has been politically ravaged, and consumerist solutions are now winning favor. This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers' prices and providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these contracts. This Article proposes legal solutions to the plight of the patient-as-consumer and asks what that plight tells us about market solutions to the health-care quandary.