FAMILY DEFINITIONS AND CHILDREN'S RIGHTS IN CUSTODY DECISION MAKING: THE IMPORTANCE OF A CHANGING LITIGANT CONTEXT

Recent scholarship has advocated two distinct approaches to promoting the preservation of children's attachment relationships during custody disputes between their biological and nonbiological parents. Some scholars argue that legal recognition of expansive definitions of the family is the key to protecting children's attachments, while others argue that such protection is contingent upon legal recognition of children's rights. This research examines the efficacy of these competing arguments through an analysis of 75 cases decided in 21 states and the District of Columbia between 2004 and 2005. Findings suggest that judicial attention to definitions of the family is generally confined to cases involving specific types of litigants; namely, former homosexual partners, couples who utilized fertility technologies, former stepparents, and presumptive fathers. In these instances, attention to broad conceptions of the family is associated with the maintenance of children's attachment relationships. Beyond this particular context, however, judges focus almost exclusively on balancing children's interests and rights against those of their biological parents. These findings suggest that both children's rights and family definitions influence judicial decisions, but their impact is context specific. For those scholars advocating legal change, this is an important insight because it shifts the debate from an “either/or” focus to one that recognizes the importance of the litigant context in custody decision making.     

Custody Investigations in Divorce Cases

Custody investigations by social workers of the home circumstances of children soon to be the subject of a custody order in a divorce case usually provide psychological and socioeconomic data about the family and other adults interested in the children's welfare. Reports of such investigations are used by judges in arriving at decisions about custody. The author's research has led him to conclude, however, that such institutionalized custody investigations can be defended only if they help spouses to resolve disputes that otherwise would be tried. Further, he suggests that safeguards be instituted to protect spouses from inaccurate and biased reporting.     

法律语言的模糊性及准确运用

根据传统的范畴理论,法律表达应符合准确性这一基本要求,故追求准确为立法语言和司法语言的目标之一。但是,由于对事物的界定模糊不清以及人类的认知能力有限,法律语言尤其是立法语言中常使用模糊词语,有助于增强语言表达的效率及保护当事人权利,但也会带来诸如过分扩大法官自由裁量权等不利后果。对于法律语言的模糊性,可借助内外部指导、司法判决以及相关语境而使之明确化,从而有效地限制法官的自由裁量权过分膨胀。     

Patient narrative: an ‘on-switch’ for evaluating best interests

This article examines how the wishes, feelings, values and beliefs of adults lacking capacity can be evaluated and the extent to which they are given effect in best interests decision-making. One way of fulfilling the clinician’s legal responsibilities to take a patient’s preferences into account is to explicitly link these to the notion of narrative. Narratives provide a compelling grounding and give weight to views and values that may have been informally and consistently expressed in the past. An evaluation of recent case law suggests that the trajectory of a person’s life, their character and personality, and the perspectives of those with whom the patient has valued relationships are given increasing judicial recognition. Attending to the narrative of the patient could lead to a more sophisticated judgement of best interests than an objective ‘balance sheet’ approach would allow and enable greater alignment with the UN Convention on the Rights of Persons with Disabilities.     

Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant

Abstract: The European arrest warrant (EAW) is the first and most striking example of the extensive judicial cooperation in criminal matters that is beginning to take place in the European Union. Replacing traditional extradition between EU member states, including the ten accession countries after May 2004, it will operate on the basis of mutual recognition of judicial decisions, thus taking extradition decisions out of the hands of politicians. It rests on the presumption that criminal justice systems are equivalent throughout the EU and that the rights of the defence, in particular, are safeguarded adequately and in a comparable way EU‐wide. However, before the EAW has even been implemented, a number of practical problems are beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space. The way in which these problems are tackled will be a litmus test of the respect for fundamental rights across the EU in the field of justice and home affairs. This article highlights the problems inherent in the rapid development of the principle of mutual recognition and suggests ways in which these problems can be addressed allowing for full protection of fundamental rights within a fully functioning European area of freedom, security, and justice. The EAW will be used to illustrate the prominent features of the emerging landscape of judicial cooperation in criminal matters, providing as it does the most radical example of developments in this field so far and their implications for fundamental rights.     

司法裁判引证法律学说的功能研究——基于生效裁判文书的实证分析

法律学说是连接立法与实践的知识储备和理论桥梁,也是推动司法与社会互动的知识引擎和理论动力。学者的学术观点是法律学说的直接体现。在我国,存在司法判决引证法学学者观点的现象。实证研究表明,268份样本裁判文书中,有60位法学学者的观点被引证307次。法律学说在裁判文书中发挥着解释法律、论证说理及补充法律漏洞等作用,从而增强法官对法律事实性质或裁判结果判断的合理性和合法性,提升裁判结果的可接受性。从应然层面来看,法律学说要为司法裁判提供可能的参考答案,为司法裁判提供有效的法律方法以及通过司法裁判总结科学的司法规律。实证研究与理论分析表明,虽然司法判决可以成为法律学说的“试验田”,但是从主题任务和实践立场两分的角度看,法学与司法的适当分离是法治持续进步的阶梯。     

The Influence of Personal Values on Legal Judgments

The non‐legal factors that influence judicial decisions have been the subject of extensive debate. Theoretical and empirical work has focused on factors including political ideology, activism, attitudes, and demographics. Personal values are related to these factors and are central to decision making. The study described in this article translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in legal opinions revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. An empirical study of legal academics extended this analysis and highlighted the significant influence of personal values on legal decisions. The value:decision paradigm provides a new framework to analyse judicial decision making, judicial division, and judicial discretion and has significant implications for judicial diversity.     

Challenging normative constructions of parentage in Ireland

Legal conceptions of the family have evolved considerably in recent years. Many legal systems now offer recognition to what are commonly termed ‘non-traditional’ families, namely those that fall outside of the ‘sexual family’ ideal. Such reforms are certainly encouraging but they may nonetheless be criticised on the basis that they promote a heteronormative construction of the family rather than providing an innovative new perspective on modern family relationships. Using recent Irish reforms as the basis for the discussion, this article will examine the normative approach to family recognition which has been adopted in both Ireland and England and Wales and it will question whether those legal systems adequately accommodate families which fall outside the normative ideal. Where failings are identified, suggestions are presented as to how the law could be modified so as to fully accommodate ‘non-traditional’ families, in particular gay and lesbian families.     

The Regionalisation of Judicial Review: Constitutional Authority,Access to Justice and Specialisation of Legal Services in Public Law

Since April 2009 judicial reviews may be dealt with at regional centres and in Cardiff. This change significantly relaxed the hitherto highly centralised system of judicial review in England and Wales. The main aims were to improve access to public law redress by enabling cases to be listed and heard at the most appropriate regional location. Despite recognition of the need to improve regional access, fears exist that this reform will threaten the standing and authority of judicial review in this jurisdiction; that it will contribute to a fragmentation of judicial review and, in the regions, reduce the quality of public law adjudication, legal advice and representation. Drawing on an empirical study on the regional use of judicial review, this paper assesses these matters and considers the early effects of regionalisation on access to judicial review and the development of regional markets for legal services in public law.     

Delinquent Careers and Criminal Policy

This article critically examines the prevailing judicial waiver statutes that require juvenile court judges to make individualized determinations as to a youth amenability to treatment and danger to society. It concludes that such decisions cannot be made with an acceptable degree of accuracy using current methods of clinical diagnosis or prediction, and that the broad discretion given judges in making transfer decisions results in inconsistent and discriminatory applications that undermine the fairness and predictability of the process. In light of the expanding research on the development of delinquent careers, it contends that a legislative redefinition of juvenile court jurisdiction that automatically excludes certain youths from the juvenile court on the basis of their present offenses and past records not only identifies more accurately those youth who should be prosecuted as adults, but also increases the fairness, rationality, and predictability of the adulthood determination. It suggests that an application of "just deserts" principles to the juvenile court waiver decision could have salutary consequences for youths, the juvenile and criminal justice systems, and social control.     

论常识判断与法律判断的衔接与转化

近十年来,我国出现了一些激起社会各界广泛争议的案件,这些案件引起了对公众的常识判断与法律判断之关系的探讨.然而,目前的理论研究因缺乏对常识的本质进行分析,普遍对常识判断与法律判断做异质化处理,这种思考方式并不有助于做出合理的司法裁判.从常识哲学来看,常识判断的正确性并不当然弱于其他类型的判断,它反而与广义的理性等义并且是推理的根本基础.司法裁判要进行合理的归责,就必须实现常识判断与法律判断的衔接及转化.哈特的“承认规则”可被视为是在理论上探讨作为非制度性规范的常识向制度性规范的转化,阐明司法裁判得以从日常生活方式中获取规范性内容的理论进路.     

也论内地和香港相互承认和执行法院判决

内地和香港相互承认和执行法院判决是两地司法协助中的一项重要内容,具有重大的现实研究价值。内地和香港相互承认和执行法院判决是在一国两制下的不同法系间的区际司法协助,不同的社会体制、法律文化乃至不同的司法理念和体制决定了应该根据《基本法》中有关条款和两地的各自立法对符合条件的内地和香港的民商事案件按照程序相互承认并加以执行。     

疑难案件、司法判决与实质权衡

在疑难案件的审理中,经常可以发现,一些法律规则之外的因素影响了司法判决的做出。如何认识与评价这一现象？这些因素是否不可避免？如果是,这是否就意味着司法判决失去了客观性、确定性与合法性？文章通过考察几个中国司法实践中所出现的疑难案件,以及一些理论上的探讨,回答了上述问题,并得出结论：在疑难案件中,一个完整的法律论证必然要将某些法律之外的因素涵括进来;或者说,一个包含了法外因素的论证将更为真实、更为完整,从而也是更值得被接受的。     

Accommodating Children's Rights in a Post Human Rights Act Era

This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the 'paramountcy principle' in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.     

Law,psychology, and children

Society's treatment of children and families is guided by the premises that children lack the ability and/or the capacity to be autonomous directors of their own lives and that the private autonomous family is best suited to provide for the best interests of children. These premises are based on two assumptions: (a) that parents will act in their children's best interests, and (b) that parents possess the maturity, experience, and judgment required to make life's difficult decisions, which children lack. We explore these premises and assumptions along with the concept of the best interests of children and the relationship between children's capacities and children's rights. We conclude that collaboration between legal scholars and social scientists will enhance the likelihood of more informed decision making about these issues.Appreciation is expressed to Sarah L. Cook, without whose assistance this special issue would never have been completed.     

Judicial Control of the CAC

This article both analyses the courts' decisions on applicationsfor judicial review of CAC determinations under the trade unionrecognition procedure in Schedule A1 to the Trade Union andLabour Relations (Consolidation) Act 1992 from 2000 to 2006and compares this body of case law with the courts' decisionsin the late 1970s and early 1980s on applications for judicialreview of both decisions of ACAS under the recognition procedurein the Employment Protection Act 1975 and decisions of the CACunder various legislative provisions in that earlier period.It suggests that there is a marked difference in judicial approachand that this reflects a difference in the policies underlyingthe legislation of the two periods, with the more radical aimsof the earlier period attracting a less sympathetic and moreinterventionist judicial response than has been evident in relationto the Schedule A1 recognition procedure.     

司法裁决的后果主义论证

后果主义论证是法律论证的一种形式,是实现合理的司法裁判和证成裁决结论的重要要素。司法中后果主义论证关注不同裁判方式所带来的可能后果,通过评判不同的后果来选择裁决结论。与一般情境中的后果论不同,司法裁决的后果主义论证主要出现在法官为正当化案件裁判所进行的二次证明中,它是基于可欲后果的证立,这种可欲后果是裁决的逻辑后果或一般后果。     

法律逻辑：回顾与展望

法律逻辑的历史大致分为三个阶段：第一阶段主要是建立以传统逻辑或一阶逻辑内容为框架的法律逻辑体系,并将这些理论广泛地运用于法律思维领域之中;第二阶段主要是从法律适用问题的研究扩展到了法律发现或获取问题的研究;第三阶段主要是对事实发现、法律获取、诉讼主张与裁决证成的规律、规则与方法进行系统的研究,逐渐地建立以事实推理、法律推理、判决推理与法律论证理论为主要内容的不同于传统逻辑与一阶逻辑框架的法律逻辑体系,并将这些理论应用于事实的发现、法律的获取、诉讼主张与裁决的证立之中。     

STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

In this article, the author reviews state supreme court applications of Troxel v. Granville , analyzing the impact of the decision on the courts' ongoing efforts to adjudicate visitation disputes between parents and grandparents. Set against a background of legislative recognition of grandparents' rights and judicial uncertainty regarding the appropriate role of nonparents in children's lives, Troxel reaffirmed the constitutional right of parents to direct their children's upbringing. The author argues that state supreme courts evaluating gradparent visitation statutes and seeking to enforce Troxel 's presumption in favor of parents should be more willing to strike down overly broad statutes. Such an approach would be a positive step toward addressing the excessive judicial discretion that the Troxel Court found so problematic, and would signal to state legislatures the need for statutes that both provide for the needs of children and protect parental rights.     

Educational Research and the Protection of Human Subjects

Educational research is increasingly subject to legal restrictions designed for the protection of human subjects of research. In this article the author discusses legal restrictions–both in the courts and under HEW regulations–on educational research, comparing these restrictions with those on biomedical research. He finds that although educational research in particular instances may give rise to suits for damages for invasion of privacy or intentional infliction of psychological distress, the legal issues relating to educational research will most often be resolved in proceedings before institutional review boards charged by HEW with the responsibility for passing upon proposals to conduct research on human subjects. He argues that the interests protected in proceedings before institutional review boards are not limited to those that have received judicial recognition in suits for damages. The author finds that the requirement that the informed consent of subjects be obtained presents difficult issues for educational research. He notes in particular the problems presented by research proposals that as an element of the research design contemplate the observation of subjects without their knowledge and the use of children as research subjects.