Real jurors' understanding of the law in real cases

A survey of 224 Michigan citizens called for jury duty over a 2-month period was conducted to assess the jurors' comprehension of the law they had been given in the judges' instructions. Citizens who served as jurors were compared with a base line of those who were called for duty but not selected to serve, and with those who served on different kinds of cases. Consistent with previous studies of mock jurors, this study found that actual jurors understand fewer than half of the instructions they receive at trial. Subjects who received judges' instructions performed significantly better than uninstructed subjects on questions about the procedural law, but no better on questions about the substantive (criminal) law. Additionally, jurors who asked for help from the judge understood the instructions better than other jurors. Since the results replicate previous research using simulated trials, this study provides evidence for the generalizability of earlier work to actual trials.     

Playing the race card: Making race salient in defence opening and closing statements

Purpose. Researchers have reported that making a Black defendant's race salient reduces White jurors' tendency to find Black defendants guilty ( Sommers & Ellsworth, 2000 ). We examined whether making race salient by including racially salient statements in the defence attorney's opening and closing statements (i.e., ‘playing the race card’) reduced White jurors' racial bias against a Black defendant. Method. We obtained scores on racial attitudes for 151 White college students who participated in an experiment where defendant race (Black, White) and race salience (not salient, salient) were manipulated in a between‐subjects design. Participants read one of four trial stimuli and completed dependent measures. Results. ‘Playing the race card’ reduced White juror racial bias as White jurors' ratings of guilt for Black defendants were significantly lower when the defence attorney's statements included racially salient statements. White juror ratings of guilt for White defendants and Black defendants were not significantly different when race was not made salient. This effect was separate from jurors' level of prejudice (as measured by racial attitudes) as high prejudice participants were more likely than low prejudice participants to find the Black defendant guilty, independent of the race salience manipulation. Conclusion. Our study indicated that an explicit attempt by a defence attorney to ‘play the race card’ was a beneficial trial strategy a defence attorney could use to reduce White jurors' bias towards Black defendants. However, the beneficial effect of such a strategy may not reduce White jurors' bias towards Black defendants for all White jurors.     

Beyond normative constraints: Declining institutionalism and the emergence of substantive and procedural justice

Popular notions of what it means to be put on trial invariably generate thoughts of the adversarial criminal trial, most often before a judge and jury. However, the criminal trial as the site for the testing of evidence of wrongdoing via a model of proof that proceeds according to prescribed processes in a normative institutional milieu is in decline. Controversially, this decline has been met with resistance from the legal profession, academics, policy makers and other stakeholders seeking to preserve the due process model that defines the criminal trial as an adversarial exchange between state and defendant. While the due process model continues to dominate as popular conceptualisation, the twenty-first century criminal trial has changed to such an extent that it is no longer seen as the quintessential form for the meting out of procedural fairness and testing of state's evidence, that emerged toward the end of the seventeenth century. Rather, the rise of control orders, modifications to the law of evidence, and the right of the accused to confront their accuser, together with the inclusion of non-traditional agents of justice, specifically victims and the community, has brought forward an era of substantive and procedural justice that lies beyond the normative constraints of the criminal trial. Robed counsel and bewigged judges beware; the advent of substantive and procedural justice has allowed for greater innovation transgressing the orthodoxies of criminal law in common law systems of justice. This paper will consider the virtues of the introduction of a transgressive criminal procedure.     

JUDGES' UNEQUAL CONTRIBUTIONS TO EXTRALEGAL DISPARITIES IN IMPRISONMENT*

How do judges in the same court system contribute differentially to extralegal disparities in sentencing? Analyses of felony sentencing in an urban Ohio trial court uncovered two distinct but equal-sized groups of judges that differed in the magnitude of extralegal correlates to imprisonment. Within the group of judges reflecting substantive extralegal correlates to prison sentences, demographic correlates (based on defendants' race, sex, age, and the interaction between them) were more pervasive across judges relative to social demographic correlates (based on education, residence length, and means of financial support). The directions of significant relationships involving a defendant's race, age, and means of support also were inconsistent across judges. These interjudge differences suggest that analyses of cases pooled across judges at either the jurisdiction or the state level might over- or understate the relevance of particular attribution theories of sentencing disparities.     

IT and Law,and Law Schools

If 'computing and law' as a discipline is to push forward and develop, it will do so best within the context of the law school rather than as a joint enterprise between law and other disciplines. It is in the law school that the understanding of the nature of law is at its height. Yet there are problems here-law schools have a strained relationship with technology and their concept of the breadth of 'legal scholarship' can be limited by conventional (or ideologically-biased) views of law and an undergraduate-oriented view of the law school's purpose. There are also problems arising from the nature of communications between lawyers and computer scientists. In this article, I highlight these problems and also argue for a more developed and extended view of legal scholarship which will be able to incorporate study and research of the impact of the computer upon legal society as well as the legal control of the unwanted elements arising from these new technologies. Most writings on IT and the law school concentrate upon its use as an educational tool. My interest here is not so much in this side of things, but in the research culture of the law school. Whilst there is sometimes a view that the linkage of law school and IT is purely related to the use of technology in legal education, the remit is wider and includes the understanding of the link between substantive law and the context of the new computerized world and also the impact of the computer in the practice of law. This latter aspect is becoming increasingly important with the Woolf reforms and computerization of the procedural elements of law, but also in substantive law: for example, administrative systems are becoming more and more mediated by technology, and administrative law must be reviewed and re-worked in this context.     

近代中国基层司法中的批词研究

批词是传统中国司法活动中重要的司法文书形式。审判官利用批词推动着传统诉讼进程。清代州县诉讼中的批词,无论在适用阶段、对象还是内容上都丰富多变,代表传统全能型审判官在无分行政与司法、实体与程序的情景下对案件处理的一种灵活方式。民国基层司法中批词仍然存在,其在发挥程序性作用方面与清代类似,但在案件的实体问题上已为正式的法律判决书所替代。这种既有关联又有区别的特点显示出近代中国基层司法文化演进的延续性。     

对行政机关滥用职权的司法审查

Through the analysis on three typical cases, it is believed why courts rarely make judgments directly based on the review criteria of“abuse of power” pursuant to article 54 of the Administrative Litigation Law is mostly that the relevant legal provisions are not clear. Besides, in hearings, judges are more inclined to use“conversion techniques”. Meanwhile, it is further revealed of the issues existing in the substantive review of courts. Yu Lingyun is a professor of law at Tsinghua University, Beijing. His main researches include administrative discretion, legitimate expectation, administrative contract, law enforcement, case method and police law. He has released a number of articles, such as Legitimate expectation in administrative law (2003), Pseudo-contract in administrative law (2001), Remedial system of administrative contract (1998), Legitimate expectation in administrative guidance (2007), The construction and development of special administrative law (2006), The scope of judicial review in the administrative litigation law (1992), Experts consultation in government rule-making (1995), Reflection on administrative coercive execution (1998), Compatibility of administrative contract to the characteristics of administrative law (1998), On investigation in resident permission system (1998), The rule of law and administrative contract (1998). His monographs include Administrative Contract (Renmin University of China Press, 2000), Administrative Discretion (China People’s Public Security University Press, 2005), Preventing and Remedies of the Abuse of Police Power (China People’s Public Security University Press, 2002).     

The influence of prior record evidence on juror decision making

Several researchers have investigated the impact of evidence of prior convictions on jurors' decision making. Very little is known about a related issue, the impact of prioracquittal evidence introduced by the prosecution on jurors' decisions. The Supreme Court recently held (Dowling v. U.S., 1990) that the admission of prior acquittal evidence does not unfairly prejudice the defendant. We conducted a simulation study to examine the effects of prior record evidence (prior convictions, prior acquittals, and no prior record) on jurors' decisions. We also manipulated the presence of judicial instructions on the limited use jurors can make of extrinsic acts evidence. Mock jurors were more likely to convict the defendant when they had evidence of a prior conviction than when they had evidence of a prior acquittal or no record evidence. This effect was mediated by attributions about criminal propensity. Judge's limiting instructions were ineffective in guiding jurors' use of prior record evidence.     

填补权利保护的漏洞——法国行政诉讼临时处分制度的晚近发展

法国立法和最高行政法院的判例展现了法国行政诉讼临时处分制度的沿革,法国行政诉讼临时处分程序有不同的种类。中止执行性临时处分和保护基本自由临时处分是使用频率最高、权利救济功能最强的两类临时处分。这两类处分具有独特的救济作用和适用范围,突破了"诉讼不停止执行行政决定"、"法官不得向行政机关下达强制令"等法国行政法传统原则,行政法官运用判例创建和发展了"基本自由"等新的法律范畴。     

Trial and Error: Lawyers and Nonlawyer Advocates

Nonlawyer advocates are one proposed solution to the access to justice crisis. Theory and research suggest that nonlawyers might be effective, yet scholars know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers who represent employers in these hearings, this article explores how both types of representatives develop expertise and what this means for effectiveness. We find judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through “trial and error.” We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or advocate for law reform on a broader scale. These findings have implications for future access to justice research and interventions.     

界分审判权与团体自治权的理论模式——以日本的部分社会论为中心

部分社会论是日本的法官们为界定审判权的范围,通过判例发展出来的一种新的理论工具,其理论基础是"有社会,就有法"的法社会学观点."部分社会"内部发生的纷争,与国家法律没有直接关系,应依据团体内部的自治性规则解决,审判权不宜介入.但实际上,日本各级法院面对有关部分社会的纠纷时,并非简单地固守部分社会论,有时从实体和程序两个方面对团体自律权进行司法审查.在思维方式上,部分社会论首先认定不属于审判权对象的事项,从而间接地确定审判权的对象.部分社会论给予我们的启示是:从宪政的高度,明确"案件"、"审判权"的含义;根据审判权属性,选择理想的受案范围立法模式;以强化说理为着眼点,提高审判水平;以审判为中心,推动法学理论创新.     

最高人民法院关于无效行政行为的探索

最高人民法院从司法审查引发出对无效行政行为制度的探索,虽没有使用“自始没有任何法律效力”和“无效”等概念,却在民事诉讼领域形成了有关基础行为的构成要件,在对行政行为的司法审查中形成了重大明显瑕疵的类型化和明显性判断标准,并形成了排除具有重大明显瑕疵行政行为公定力、相对人拘束力和司法强制执行力的无效行政行为制度雏形,为我国今后立法积累了丰富的素材。从最高人民法院的探索轨迹及其重大明显瑕疵的类型化,可以发现无效行政行为规则的鲜明中国特色,司法的制度生成意义和生成机制。     

行政诉讼审前程序的功能定位及实现机制

国外主要法治国家行政诉讼审前程序,旨在实现的功能并非是单一的,除具有为庭审作充分准备,导向一个高效益的庭审之功能外,尚具有一定的或极强的实质性处理行政诉讼案件功能;我国现行法律对行政诉讼审前程序的功能定位是单一的,没有考虑行政诉讼的特质,致使该程序不具有真正意义上的独立程序之品性;我国行政诉讼审前程序应具有对未来庭审之裁判结果产生实质影响的功能;针对行政诉讼审前程序之应然功能的具体诉求,应建构其实现的具体机制：确立行政诉讼审前程序的称谓、确立行政诉讼审前程序的主持机构和配备人员、举行预审听证会。     

司法决策中的“父爱主义”管制逻辑

在包括赵春华案在内的诸多引发舆论关注的争议案件中,法官或许并非不是不懂得如何利用社科法学的判断能力与法教义学的裁判技术去弥合司法标准与公众认知之间的巨大断裂,而更可能是基于其“父爱”式的社会“管制”取向而对司法后果的实质合理性问题做出了“爱之深,责之切”的价值决断。在中国特色社会主义法律体系已经形成的历史背景下,为了保证良法的颁行能够导向预期的善治,法律必须以其作为“社会交往机制”的系统潜力而彰显其公理性与司法的合理性。只有首先确立基于交往原则和承认社会自主性的权力逻辑与法律决策结构,那种体现“人性化”“人文化”和“人权化”的方法论逻辑才有可能在法律的运作中获得国家体制官僚无法武断拒斥的实效。     

我国行政法实体法的突破与瞻望——评《中华人民共和国公务员法》

《中华人民共和国公务员法》的颁布是我国行政实体立法的一大突破:该法开始了行政法从程序到实体的转型;将行政法调整对象由外部行政关系向内部行政关系转移,开启了法治社会的先声;尽力避免人治,实现了公务员管理的法制化。但是,该法界定的公务员范围过宽,确立的公务员录用制度、工资福利保险制度及人事争议仲裁制度有待完善。     

Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law*

Abstract. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula.     

Legalism and English Administrative Law: Comment on Sterett

In a recent issue of this journal (Volume 15, Number 4, Fall 1990), Susan Sterett examined the role of the Law Commission in the development of English administrative law. She suggested that the Commission mimicked a "peak association" and adopted an "idiom of legalism" in order to justify its reform proposals. This comment disagrees with Sterett on three grounds. First, the role and constitutional position of the Commission is far more complex than Sterett suggests, and this affects the way in which the Commission works. Second, judges and academic lawyers were central to the reform of substantive principles of judicial review in the 1960s and 1970s, making it unnecessary for the Law Commission to act in this field. Finally, it is wrong to ignore the fact that much administrative law occurs outside the judicial review procedure.     

论行政规定在行政诉讼中的效力

在现行法律体制下,行政规定不属于法律渊源,不是行政诉讼中法院必须适用的法律依据。但行政规定是行政机关作出行政行为的依据,在现实社会中具有重要的规范功能。在行政诉讼中,法院对行政规定既不能完全抛开,又不能完全信任。为了回应社会现实,应当在形式法治的框架内,融入部分实质法治的要素,附条件地承认行政规定的效力,并由法院依照这些条件和规则予以审查。     

深化改革背景下对司法行政化的遏制

司法行政化,即以行政的目的、构造、方法、机理及效果取代司法自身的内容,形成以行政方式操作的司法。法院司法运作的全过程均带有行政化色彩,表现为司法目的和价值的行政化、案件审判活动的行政化、上下级法院关系的行政化、司法人事制度和法院结构的行政化以及审判管理的行政化等。在给定的约束条件下,司法行政化可以弥补一线司法能力之不足,可以抗制外部干预。但其过度发展会妨碍依法治国,损害办案质量与效率,危及司法权威和公信力,阻碍法院工作的可持续发展。司法行政化的根源在于基本权力结构及其运行机制;司法功能设定的非司法化和资源配置的有限性,统一的人事管理制度和财政供应制度以及国家机能分化不足,亦为重要原因。遏制司法行政化需强化法院的司法审查功能、审判功能以及终局性纠纷解决功能;需阻隔行政性要素介入审判,建立审判独立的"二元模式";需在法院审判管理、司法行政管理、上下级法院业务管理上"去行政化"。