Hearing the Voice of the Child: Current Practice in Family Courts in Germany

German family courts have a long‐standing tradition of hearing the child's voice when proceedings affect the child. This article aims to provide an overview of the German procedural rules. The current role and practice of child hearings in family courts and the direct effects on the child are discussed in detail. The perceived benefits, challenges, and pitfalls are deliberated from the viewpoint of the psychological expert. Hearing the voice of the child in person is increasingly viewed as beneficial to the proceedings if the judges and other professionals involved possess the necessary qualifications and competence.     

Enforcement of International Human Rights Law by Domestic Courts: A Theoretical and Practical Study

Netherlands International Law Review -     

The ADA on the Road: Disability Rights in Germany

This paper examines the impact of a "disability rights model" on the emerging disability rights movement in Germany. Traditional German disability politics and activism are based on the expansion of welfare and special needs provisions rather than on equal rights and integration. Inspired by the 1990 Americans with Disability Act, German activists adopted a disability rights model and successfully worked toward the passage of a constitutional equality amendment in 1994 and ant-discrimination legislation in 2002. Using the literature on rights mobilization, this paper argues that German disability activists use rights talk to both support and contest culturally specific approaches to disability rights, equal treatment, and the role of the state in guaranteeing welfare rights. The globalization of disability rights should not be viewed as an imposition of American norms but as a more complex process of adaptation and cultural transformation that involves constructing locally legitimate approaches to disability rights with an American import.     

The Role of the Courts in the Devolution and Human Rights Arrangements

Liverpool Law Review -     

人格权法与中国民法典的制定

在制定中国民法典的讨论中 ,关于人格权法的位置安排是其中最为重要的问题之一。考察大陆法系国家民法典对人格权的规定及参照我国学者的观点 ,我们认为 ,民事主体制度 (人法 )和侵权行为法不能承担规定人格权的重担。从人格权的全面保护角度而言 ,人格权法应独立成编。以此为基础 ,本文提出了人格权法编大致的内容设计。     

Making and Breaking Family Life: Adoption, the State, and Human Rights

This article explores the extent to which the state's duties and responsibilities in the context of adoption are framed and reinforced by a rights-based discourse. It argues that the human rights paradigm plays an invaluable role in the pre-adoption process by identifying and imposing ever more exacting obligations on the state - obligations which are currently not being fully met by the Adoption and Children Act 2002. The application of a rights-based discourse to the post-adoption context proves, however, to be considerably more problematic. Indeed, it is argued that rather than extend and strengthen the state's responsibilities towards the child and the adopted family, liberal rights-based doctrine tends towards a more traditional model of adoption in which a minimalist state and the privacy, autonomy, and self-sufficiency of the new adoptive family are further entrenched. It is thus concluded that a human rights analysis provides no secure basis for challenging the Adoption and Children Act's rather limited provisions on post-adoption support.     

论英国人权法对英国刑事司法程序的影响

2000年10月2日之前,随着英国全国范围内的人权法培训的结束,一些人对人权保护的期待值很高,也有人的期待值却相当低。许多著名的法官呼吁将欧洲人权公约纳入英国法,而同时有观点指出至少是一部分人将1998年的英国人权法看作是对英国法律的不必要的侵扰或者是属于一种复杂的产物。政府中的领袖们开始使用炙热的语言来评价这个新法:“这是自1689年权利宣言以来在英国国内法中关于人权的最重要的宣示”,这部法律必将“对裁判或作出裁判的过程产生明确的道德方面的影响”,与此同时,政府发布的一些立法建议则提出在一定程度上要全心全意地致力于…     

Folktales of Legality: Family Law in the Procedural Republic The Narrative Structure of Family Law

This article explores the narrative structure offamily law where divorce is available on ground ofirretrievable breakdown following separation for oneyear. It argues that contemporary no-fault regimesexemplify law's procedural republic, a space with itsown legal, ethical and political requirements whichhas little if any connection to the life-worlds of theparties. Through an analysis of intractable parentingdisputes it argues that the interaction of no-faultdivorce, the requirement to have regard to the bestinterests of the child and the principle that childrenhave a right to contact with both parents has led tothe creation of particular narrative forms. Thesenarrative forms are characterised by their absolutismand map the unresolved grievances surrounding maritalbreakdown onto parenting disputes where the statutoryrequirements map them onto particular narratives andcounter-narratives. In this process, the narrativesof expert witnesses play an increasingly prominentrole, as do the naïve narratives put forward bylitigants in person. The article argues that thesenarratives are, in important ways, fictions and thatthey are compelled by the procedural requirements ofno-fault divorce. It argues further that thesefictions are a consequence of the empty narrative spaceat the heart of family law.     

The Diffusion of Rights: From Law on the Books to Organizational Rights Practices

How does law change society? To gain new leverage on this long‐standing question, this article draws on two lines of research that often ignore each other: political science research on the mobilization of law, and sociological research on the diffusion of organizational practices. Our insights stem from six case studies of diverse organizations' responses to the accommodation provisions in the Americans with Disabilities Act and related state laws. We found that different modes of exposure to the law combined with organizational attributes to produce distinct “rights practices”—styles of standard operating procedures and informal routines that reflect the understanding of legal requirements within an organization. The diversity of the organizational responses challenges simple dichotomies between compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization, and it underscores the importance of combining political science and sociological perspectives on law and social change.     

人权保护对冲突法发展的影响

人权保护思想对现代欧美国家冲突法的发展起到了积极的促进作用。美国现代侵权领域各种法律适用理论在追求案件处理结果公正的目标背后,隐含着人权保护的价值诉求;欧洲以法德等国为代表,在不改变“以规则为中心”的前提下,通过发挥宪法的直接效力作用,将人权精神体现到冲突规范的变化和外国判决的承认与执行中。人权保护成为现代冲突法发展的重要推动力。我国在进行新的冲突法立法时,也应考虑体现人权保护的理念。     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.