Judicial Conversations With Children in Parenting Disputes: The Views Of Australian Judges

In an article in the last issue of this Journal, we reportedon a study of parents' and children's views about whether theywould like judges to talk with children in chambers. This articlereports on a related study of the views of Australian judgesconcerning the issue. It explores the reasons that judges gavefor being opposed to or cautiously in favour of having conversationswith children before and after making their decisions. On thebasis of these views, and the views of the parents and childrendiscussed in the earlier article, we propose guidelines on whenand how judges should engage in ‘conversations’with children in chambers if they consider it appropriate todo so.     

The Views of Psychologists,Lawyers, and Judges on Key Components and the Quality of Child Custody Evaluations in Australia

This study aimed to understand the expectations of and the agreement between professional groups regarding the quality of single‐expert reports written by psychologists (known as child custody evaluations in the United States). 13 psychologists, 18 family lawyers, 26 children's lawyers, and 8 judges (N = 65) in New South Wales, Australia, rated the overall quality of reports and the quality of various components of them. Interprofessional congruence on importance ratings allowed key components to be derived. The results revealed that the overall quality of reports was rated positively, however, significant discrepancies were found between importance and quality ratings on the various components, indicating that reports fall short of expectations in many areas.     

Judges Taken Too Seriously: Professor Dworkin's Views on Jurisprudence*

Abstract. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law-giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously.     

乡土社会民间法与基层法官解决纠纷的策略

本文从三个方面分析基层人民法院在解决民事纠纷时与乡土民间法的冲突与转化关系。着力阐释乡土社会民间法的作用 ;基层法院法官运用乡土民间法解决纠纷的原因 ;以及乡土民间法在解决纠纷时的实现过程与方式。     

中日两国父母教养态度与儿童孤独感的关系

以448名中日两国小学4-6年级儿童为研究对象,采用Asher等人研制的儿童孤独感量表、日本田研式精神健康诊断调查表和亲子关系检查量表考察了中日两国父母的教养态度及其与儿童孤独感的关系.结果显示,中日两国父母的"期待"、"严格·干涉"和"不安·溺爱"教养态度存在显著差异.两国男生与女生在"严格·干涉"和"期待"两种教养态度上存在显著差异.两国四年级与五、六年级学生在"严格·干涉"、"期待"和"不安·溺爱"教养态度方面存在显著差异.中国父母的"严格·干涉"、"期待"教养态度与儿童孤独感呈显著正相关.日本父母的教养态度和儿童孤独感呈显著正负相关.     

商标民事纠纷中类似商品的判断标准

本文结合司法实践和国内外立法从三个方面展开对类似商品判断标准的讨论.第一部分对类似商品的法律属性及相关概念提出了分析意见,第二和第三部分分别从正反两个方面就类似商品判断的依据、原则和考虑因素等作出了分析.基本观点是:1.类似商品的判断属于个案事实的认定问题;2.判断类似商品应注意对类似商品、商品类别及商品的自然特性等几个不同概念加以区分;3.<商品和服务分类表>、<类似商品和服务区分表>及有关商标行政主管部门"统一认定"的商品类别和类似标准不应成为判断的直接依据;4.类似商品判断需要综合多方面的因素加以考虑,本文试图对此提出一个系统的和具有操作性的判断方法,包括判断指导原则、参考因素、主客观标准等.     

假装游戏与儿童发展:观点、争论与展望

假装游戏是儿童成长过程中必然出现的一种特殊游戏类型,它与儿童发展之间存在着密切联系,但对于这种联系的方向和可能原因尚存在诸多争议。文章重点讨论了假装与非社会性认知发展、社会认知以及社交技能之间的关系,列举出已有研究所呈现的相关论据与学术争议,并针对当前研究存在的一些问题,提出了对今后的研究从理论、实验与实践应用等方面可能突破的方向,如能否以及如何建立统一的解释框架或理论的问题,如何在实验控制与真实情境间求得平衡的问题,以及如何更好地评估假装游戏的影响与作用等问题。     

孤独的法官与法官的孤独——法官的自主性研究

法官需要孤独,孤独不是寂寞,而是一种凝结了真善美的高贵品质。法官的孤独并不是与这个世界的分离,相反法官的孤独是关注这个世界发展的命运基础上的孤独。正是因为法官把握和感受到了这个世界的整体命运,所以法官的孤独才可能对这个世界产生一种推动的力量。法官的孤独是一种具有高度自主性的美好品德。     

Professors and Judges in Italy: It Takes Two to Tango

The interplay of academics and judges is highly relevant forthe law-making process in civil law countries. The intentionof this article is to provide a brief account of the present-dayrelationship between academics and judges in Italy, while alsotaking account of the continental historical experience. Inaddressing this theme, the article will take its cue from developmentsin England—during the past three decades—where themonologue of academics and judges has been slowly developinginto an ever more intensive and transparent dialogue. It isfrom these events that the analysis departs in an attempt toquestion the current situation in Italy.     

The Interdisciplinary Settlement Conference: A Grassroots Alternative for Resolving High‐Conflict Parenting Disputes in Lean Times

This article describes a court‐connected alternative dispute resolution program, the Interdisciplinary Settlement Conference. The key feature of this program is the participation of two volunteer panelists, one a family law attorney and the other a mental health professional experienced in parenting disputes, who assist the judicial officer in working with the parties and their attorneys (if any) to reach a resolution of their parenting dispute. Significantly, in addition to addressing the parties’ legal issues, the panelists also address the parties’ psychological and emotional issues relevant to the dispute on an as‐needed basis. Findings from six years of experience with the program are discussed, including evidence of high satisfaction with the program, a high rate of settlement, a decrease in relitigation, and a concomitant savings of scarce judicial resources.     

Judges,juries, and the decision to convict

The bureaucratic context of criminal prosecution emphasizes efficiency; its legal context emphasizes due process and procedural fairness. This paper focuses on the trial stage of prosecution where both concerns are central. It empirically examines the bench trial, an alternative to the more commonly used plea of guilty and the more traditional trial by jury. A comparison between trial by judge and trial by jury reveals striking differences in determinations of guilt. These differences have implications for commonly held assumptions about both jury and judicial behavior.     

Judges and Statutes: Essays on Agent Orange

Judges characteristically ignore or deny the choices they make when statutes surround or underlie a case. The statute based claims of veterans exposed to Agent Orange provide both an opportunity to unearth the questions that now determine outcome and to suggest what those questions should be. Asking the questions proposed, judges would determine the extent to which uncertainty and thus real choice cannot be reduced, evaluate the potential for interaction between court and legislature on the issue, and reach the underlying value choices that are unavoidably theirs and that determine outcome.     

我国法官的重组与分流研究

法官职业化和精英化是法治对现代司法体制的必然要求。我国现有法官人数过多,素质不高,不能满足这一条件。因此,应在重新界定我国四级法院性质和功能的基础上,按照现代审级制度的要求确定各级法院的法官员额和任职资格,并对现任法官进行重组与分流,以优化法院人员结构,构建法官少、辅助人员多的新型法院。     

投资者与国家间争端的替代性解决方法研究

由于国际投资仲裁本身存在一定缺陷,很多国家开始重新重视和寻找国际投资争端的替代性解决方法.投资者和东道国都应该充分认识到调解等ADR方法的重要性和可行性,充分利用现行国际投资法规则体系下的ADR方法来解决投资者与国家间的投资争端.另外,由于调解等ADR方法具有灵活性和宽泛性,当事方在这方面经验不足,在实施方面可能会有一些不确定性,应该考虑在将来的国际投资协定中订入更加详细明确的调解等ADR解决方法,有效利用现行调解规则来解决投资争端.各个相关主体在国际投资争端的替代性解决方法应用方面都可以有所作为.我国应该认真研究、探索国际投资争端仲裁的替代性方法以应对新形势.     

Divergent Expectations and Experience: An Empirical Study of the Use Children's Contact Services in Australia

In this article, an overview of the key findings from the Children'sContact Services Project is presented. Children's Contact Services(CCSs) assist separated parents to manage contact arrangementswith their children through the provision of supervised visitationand changeover services. The aims of this project were to investigatethe use of CCSs in Australia by referring agencies (eg. courtsand legal practitioners), and clients of contact services (parentsand children), and to consider the views and expectations ofthese key stakeholders regarding those usages. This approachwas based on the assumption that there are currently conflictingusages and expectations of contact services, and that this situationcould compromise children's well-being. The findings were derivedfrom two studies. The first study involved conducting 142 in-depthinterviews with representatives from the Australian Government,the courts and legal practitioners who referred families toCCSs, CCS staff and management, as well as parents and childrenwho used CCSs. The second study comprised a quantitative analysisof client data collected by CCS staff from 396 families whohad used a government funded CCS in August 2003. The findingsdemonstrated that in Australia, CCSs provided an invaluableservice that was viewed positively by government, referral agents,CCS staff and management, and by the parents and children whoused them. Despite this generally positive view, there wereconflicting expectations of CCSs that, under certain circumstances,compromised children's well-being and that of their parents,particularly their residence mothers.     

Situational Factors in Disputes Leading to Criminal Violence

This article examines the interactive process leading to criminal violence. Official data from 159 incidents of homicide and assault that were not committed in conjunction with other crimes and that resulted in incarceration were examined with respect to the actions of offenders, victims, and third parties. These incidents tended to follow systematic patterns. They began with identity attacks, followed by attempts and failures to influence the antagonist. Threats were made and finally the verbal conflict ended in physical attack. It appears that retaliation is a key principle in the escalation of these incidents in that aggressive actions by the victim were associated with aggressive actions by the offender and the likelihood that the victim would be killed. The importance of situational identities for retaliating was suggested bg the moderately strong relationship observed between identity attack and counterattack. Retaliation also occurred for strategic reasons, in that offenders were more likely to kill aggressive victims when those victims used weapons.