司法制度中的几个法律语言学问题

法律语言学就是将语言学应用于法律问题的学科,司法制度中与语言学相关问题:语言与法律的关系、法律诉讼中语言学家的介入、语言学家与律师的关系、陪审团指令的理解、语言学家作为专家证人出庭等方面应该引起关注。     

Battered wives,lawyers, and district attorneys: An examination of law in action

The legal services received by 146 Milwaukee women who had been beaten by their husbands, but had been free of the violence for at least a year, are described and evaluated. Of these women 106 recieved legal help in connection with at least one battering incident. Some women saw more than one member of the legal profession, so the total number of legal contacts among the 106 women was 255. There is evidence that lawyers and district attorneys were most likely to be used by those battered women for whom the use of personal strategies and informal help sources (such as family and friends) were ineffective in combatting the violence. Contrary to the negative image of lawyers and district attorneys found in the literature on wife beating, most legal service contracts were rated as very or fairly successful by the battered women. The more difficult and severe the situation, the higher the success ratings given to lawyers and district attorneys by their clients. Despite the generally positive reactions that most beaten women had to lawyers and district attorneys, there were many negative incidents reported, including district attorneys who refused service or discouraged battered women from filing charges, and lawyers who sided with the aggressors or attempted to meet their personal and professional needs at the expense of their clients. These incidents remind us that it would be useful to educate legal professionals about the nature of family violence, the situation and needs of battered women, and the legal and ethical responsibilities that lawyers and district attorneys have when they are contacted by battered women.     

‘Working’ the international child protection case: a snapshot of local authorities’ experiences within an evolving legal context

Child protection proceedings often concern children with international connections. In recent years, the courts of England and Wales have handed down a number of significant judgments examining the application of international legal instruments (in particular Brussels IIa) to care proceedings. This article considers the impact of court judgments on the practical ‘working’ by Local Authorities of international child protection cases. A case study was conducted, oriented by socio-legal theory, consisting of a small number of qualitative interviews with Local Authority lawyers and social workers. The article concludes that some judgments have acted as a catalyst to change working practices for Local Authorities. However, international child protection cases present a variety of challenges for Local Authorities, and judgments provide an imperfect site for the provision of procedural and substantive guidance in this complex area. Further, there was often a tension between the need to conscientiously adhere to such guidance, and the welfare needs of the children with whom the Local Authority was concerned.     

Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

This article contrasts policy advocacy of alternative dispute resolution, and demonization of lawyers and court proceedings in family law, with research evidence that calls those policy positions into question. The research demonstrates, broadly, that restrictions on the availability of publicly funded legal representation do not necessarily lead parties to choose alternative resolution processes, that lawyers are much less adversarial than self–representing litigants, and that lawyer representation and litigation may produce more satisfactory and appropriate outcomes than mediation in some kinds of family disputes. The article argues that legal aid policies should respond to these realities rather than clinging to adversarial mythologies.     

Boycott,Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism

This article examines the role of cause lawyers in conflicted or authoritarian contexts where the chances of legal victory are often minimal. Drawing upon the literature on resistance, performance, memory studies, legal consciousness and the sociology of lawyers, the paper examines how cause lawyers challenge and subvert power. The paper first explores the tactics and strategies of cause lawyers who boycott legal proceedings and the relationship between such boycotts and broader political struggles, legitimacy and law. It then examines why and how cause lawyers engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’), transforming courts into sites of symbolic resistance, and using law as a form of memory work. The paper argues that boycott of and resistance through the courts can counter the use of law as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the rule of law.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

Courtroom Discourse and the Gendered Construction of Professional Identity

In addition to providing an arena for dispute resolution, the courtroom serves lawyers and judges as an important site for the construction and maintenance of their Professional identity. It is mainly through the strategic use of language within the constraints on courtroom discourse that this process takes place. Within the framework of feminist theories of language as constituent of social identity, this paper analyzes courtroom interaction to determine how gender affects the construction of the Professional identity of lawyers and judges in Israeli district courts. Quantitative analyses of terms of address, intrusions, judges'takeover of examinations, challenging comments, and the forms and use of directives indicated that women judges and women lawyers were accorded less deference than men, and that the Professional competence of women lawyers was challenged and undermined. The qualitative analysis of the off-the-record comments by judges, lawyers, and witnesses to lawyers revealed that all participants questioned the professional performance of women lawyers in gender-stereotypic ways. The devaluation of women professionals and the gendered interpretations of their behavior enacted through the discourse in the courtroom may have implications for the outcomes of trials.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.     

LEGAL USE OF MENTAL HEALTH EVALUATIONS IN CHILD PROTECTION PROCEEDINGS

The authors examine the use of mental health evaluations in legal decision making within a large, urban juvenile court system. The focus was on court files in child protection cases relating to 171 randomly selected mental health evaluations completed on parents and 44 evaluations completed on children. Parent evaluations (46.7%) were much more likely to be present in court files than child evaluations (5.9%), and evaluations conducted by in-house court clinicians (63.8%) were more often present than those conducted by noncourt clinicians (37.5%). References to evaluations in child welfare, legal, or mental health documents varied with the type of information, subject (parent or child), and source of the evaluation. Findings and/or recommendations of evaluations were cited in legal or mental health documents for approximately two thirds of parent evaluations but only one third of child evaluations. Evaluation findings and/or recommendations were stated as a basis for legal decisions in 36.2% of court-based parent evaluations, 21.0% of noncourt-based parent evaluations, and 2.3% of child evaluations. These results provide evidence of a modest impact of parent evaluations on legal decisions and notably less impact for child evaluations. The authors suggest directions for future research and practice in order to increase the accessibility and usefulness of clinical evaluations in legal decision making.     

Legal ethnography: Exploring the gendered nature of legal method

Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the legal system. Finally, the limitations of the proposed methodology are considered.     

The media coverage of court proceedings in Europe: Striking a balance between freedom of expression and fair process

Press curiosity to report on legal proceedings has been a salacious feature in history of mass media. Pre-trial comment, media coverage of press proceedings and the protection of privacy of the defendant are some of the main legal issues which are raised by the ambiguous relation of media to court proceedings. The Internet revolution and the emergence of the blogosphere have added a new dimension to the analysis of these legal issues. A balance between freedom of expression and the guarantee of a fair unprejudiced process has to be achieved in the context of application of legal mechanisms of protection of the justice’s authority, such as contempt of court. As regards the question of media coverage of the court proceedings, the decision of the UK Supreme Court on May 2011 to permit television coverage of its hearings demonstrates an important shift as regards how publicity is perceived by the administration of justice in the UK, while there is a certain disparity between national legislators in the way they deal with this issue at a European level. The legal question of the protection of the defendant through the effective guarantee of the presumption of innocence and, consequently, that of a fair trial is often combined with the debate about the right of the defendant’s privacy not only when there is a pressing social need for information to the public before or during the court trial but also many years after the end of the legal proceedings.     

Communication in family court: financial remedy proceedings from the perspective of litigants in person

The article presents a rationale for communicative, conceptual, cognitive and procedural challenges experienced by litigants in person in financial remedy proceedings. The article also explores oscillation between written and spoken legal genres and narrative development strategies which litigants in person have to use throughout different stages (from the early stages of starting proceedings, filling in court forms and providing documentation, through the negotiation process to interaction in court). While legal professionals express themselves in paradigmatic legal mode influenced by legal acts and legislation, litigants in person tend to express themselves in narrative mode similar to everyday storytelling. The objective is to investigate obstacles litigants in person experience during the process originally designed by legal professionals for legal professionals. The article evaluates different options for empowering lay people involved in legal proceedings and argues for the need to provide more specific support for different stages of family proceedings.     

What makes an international institution work for labor activists? Shaping international law through strategic litigation

Studies on international legal mobilization often analyze the mobilization efforts of activists at a single international court. Yet we know little about how activists choose among multiple international institutions to advance social justice claims. Drawing on comparative case studies of Turkish and British trade union activists' legal mobilization efforts and case law analysis, I show that activists, guided by their lawyers, probe multiple avenues to identify the legal institution with the highest judicial authority and is most responsive to activists' claims. Once they identify their target institution, the iterative process between a responsive court and activists' strategic litigation can build a court's jurisprudence in a new issue area, even if the court provides limited de jure rights protections. Activists primarily use international litigation strategy to leverage structural reforms at the domestic level and to set new international norms through precedents.     

IMPROVEMENT OF CLINICAL AND LEGAL DETERMINATIONS IN CASES OF ALLEGED CHILD SEXUAL ABUSE

Mental health and legal professionals have struggled, too often isolated from each other's disciplines, to establish methods to assess and demonstrate whether a particular child has been abused and whether a particular adult is, in fact, the perpetrator. Complete, accurate, and neutral assessment must be the first step in the healing process; however, barriers imposed by professionals often interfere with the assessment process. This article critiques these barriers and suggests improvements for both good clinical practice and effective use in increasingly adversarial legal proceedings.     

民国上海女律师的执业困境与自我成就

随着民国女律师的出现,中国女性参与法律职业的空白状态终于被打破,成为中国男女在法律职业上平等之起点。由于“赋权”式执业资格的实现方式,女律师执业权利实现后的经营面临着诸多的困境。初入职场的女律师备受时人瞩目,但旧有的律师评价体系仍用“女流之辈”这类标签,高傲地认为妇女与法律职业是相矛盾的。民国女律师在执业过程中要同时克服来自时代、自身以及同业男性律师的三重困境。面对既存的男性律师关系网带来的压力,她们没有甘心屈居“他者”的地位,而是调动一切资源开展业务,试图跻身民国律师中的佼佼者行列。     

Even Lawyers Get the Blues: Gender, Depression, and Job Satisfaction in Legal Practice

It is an intriguing puzzle that women lawyers, despite less desirable working conditions and blocked career advancement, report similar satisfaction as men lawyers with their legal careers. The paradoxical work satisfaction reported by women and men lawyers obscures a more notable difference in their depressed or despondent feelings. Using a panel study of women and men lawyers practicing in Toronto since the mid-1980s, we find at least three causal pathways through which gender indirectly is connected to job dissatisfaction and feelings of despondency. The first path is through gender differences in occupational power, which lead to differential despondency. The second path is through differences in perceived powerlessness, which directly influence job dissatisfaction. The third path is through feelings of despondency that result from concerns about the career consequences of having children. The combined picture that results illustrates the necessity to include measures of depressed affect in studies of dissatisfaction with legal practice. Explicit measurement and modeling of concerns about the consequences of having children and depressed feelings reveal a highly gendered response of women to legal practice that is otherwise much less apparent. Women are more likely to respond to their professional grievances with internalized feelings of despondency than with externalized expressions of job dissatisfaction. That is, they are more likely to privatize than publicize their professional troubles.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

A CRITICAL EXAMINATION OF THE SUITABILITY AND LIMITATIONS OF PSYCHOLOGICAL TESTS IN FAMILY COURT

Psychologists are frequently consulted by the courts to provide forensic evaluations in a variety of family court proceedings. As part of their evaluations, psychologists often use psychological tests to assess parents, guardians, and children. These tests can have profound effects on how psychologists arrive at their opinions and are often cited in their reports to the court. However, psychological tests vary substantially in their suitability for these purposes. Most projective tests in particular appear to possess little scientific merit for evaluations within family court proceedings. Despite these serious limitations, expert testimony derived from evaluations using both projective and objective tests is often admitted uncontested. This article reviews the psychometric properties of psychological tests that are widely used in family court proceedings, cautions against their unfettered use, and calls upon attorneys to inform themselves of the limitations of evaluations that incorporate these tests.     

DATA ANALYSIS OF PROFESSIONALIZATION OF LEGAL WORKERS IN CHINA

Since the reform and opening up, the legal profession in China has changed dramatically. In terms of both quantity and quality, the legal profession has stepped into a new phase. A tendency towards widespread litigation and more professionals.＂ judges, lawyers and law students, can be clearly evidenced. Along with the development of the legal profession, other types of legal workers including business arbitrators, grassroots paralegal service workers （grassroots paralegals）, and mediators have experienced great changes. To a certain extent, they have become more marginalized than before. The development of the legal profession is extremely unbalanced. Whether in terms of the number of lawyers or the income generated by lawyers, the inter-provincial gap in China is huge. The development of the legal profession also brings out the issue of judicial corruption. From the number of letters and visits related to lawsuits and the National People＇s Congress deputies ＇votes on the reports of the Supreme People＇s Court and the Supreme People＇s Procuratorate, the level of legal corruption can be noted. This＂ problem has become a crucial challenge to the reputation of the legal profession and the judicial creditability of the country. The same amount of attention should be paid to judicial corruption as to the quality of legal services.