美国公立高校学生纪律处分程序制度及其启示——以加州大学伯克利分校为例

美国公立高校处分学生时有遵循正当程序的义务,各高校普遍建立了完善的学生纪律处分程序制度。处分过程保障当事学生与师生代表的参与,处分机构民主性与中立性强,行政色彩很淡。正当程序保护的重心是处分决定的最初作出过程,校内申诉作为救济手段只是用来"拾遗补缺",学生无正当理由不能提起。美国相关程序突出了学生权利保护的价值倾向,但并没有走向过于司法化,且关注学术违纪行为的特殊性,对我国高校有重要借鉴意义。     

Towards Europeanisation through the proportionality test? The impact of free movement law on medical professional discipline

Medical doctors can exercise their free movement rights to escape the control of professional regulation at the national level. This “darker side” of free movement of doctors has received a lot of attention. This article will show that the free movement provisions play an increasingly important role in medical disciplinary cases. The application of free movement law can make a positive contribution to the protection of patient safety. However, disciplinary tribunals are unfamiliar with the structure of arguments based on the free movement provisions. While the case law on free movement of patients has encouraged a process of internationalisation of medical standards, free movement of doctors has not yet led to a similar process of Europeanisation of medical professional rules. Nevertheless, the proportionality test requires that disciplinary tribunals engage in a process of comparison between their own rules and the rules in other Member States.     

Impact of stress and mitigating information on evaluations, attributions, affect, disciplinary choices, and expectations of compliance in mothers at high and low risk for child physical abuse

The objective is to know if high-risk mothers for child physical abuse differ in their evaluations, attributions, negative affect, disciplinary choices for children's behavior, and expectations of compliance. The effect of a stressor and the introduction of mitigating information are analyzed. Forty-seven high-risk and 48 matched low-risk mothers participated in the study. Mothers' information processing and disciplinary choices were examined using six vignettes depicting a child engaging in different transgressions. A four-factor design with repeated measures on the last two factors was used. High-risk mothers reported more hostile intent, global and internal attributions, more use of power assertion discipline, and less induction. A risk group by child transgression interaction and a risk group by mitigating information interaction were found. Results support the social information-processing model of child physical abuse, which suggests that high-risk mothers process child-related information differently and use more power assertive and less inductive disciplinary techniques.     

Paint It Black: Rhode Island Supreme Court Rejects Lead Paint Nuisance Suit

During the past decade, state and local governments have increasingly brought suits to redress harm caused by products, including cigarettes, firearms, and toxins such as asbestos, lead paint, and even greenhouse gases, based not on the products liability or negligence theories conventionally applied, but on the public nuisance doctrine. Although the public nuisance doctrine potentially offers governmental plaintiffs more lenient standards with respect to issues like product and manufacturer identification, control of the product, proximate cause, and application of statutes of limitation, while limiting manufacturers' defenses, and has generated insurance claims and pressure to enter settlements, nearly all applications of public nuisance law to products claims have ultimately failed when heard by the courts on the merits. In February 2007, however, a Rhode Island trial court, in a groundbreaking decision, entered a judgment on a jury verdict imposing liability on three lead pigment manufacturers for creating a public nuisance, and ordered them to abate the nuisance in Rhode Island at a cost estimated to exceed two billion dollars.

On July 1, 2008, the Rhode Island Supreme Court reversed the trial court's judgment against the lead paint manufacturers and held that the state attorney general's complaint should have been dismissed for failure to state a claim upon which relief could be granted. The state had not, and could not, allege facts sufficient to support a public nuisance claim, as the doctrine was construed in Rhode Island or nationally. Relief from the serious harms caused by lead paint was available only through specific Rhode Island legislation and products liability law, not the public nuisance doctrine. The Rhode Island Supreme Court's decision is consistent with recent decisions from other state courts, most notably opinions issued by the highest courts of New Jersey and Missouri during 2007, and has already influenced other public nuisance plaintiffs to abandon their lead paint suits.     

民初律师惩戒制度论析——以惩戒案例为中心

律师惩戒制度对维持律师队伍的道德水准和专业素质起着规范和监督作用.在本质上这一制度反映出律师行业的自治性和国家对这一行业监督、管理和控制的互动关系.民初北洋政府时期在律师惩戒领域实行的是两级两审制:由高等审判厅推事组成的律师惩戒会是初审机构,由大理院推事组成的复审查律师惩戒会是复审机构.这一时期的律师惩戒事宜几乎完全被司法机构所垄断,律师公会被排除在外.就制度渊源而论,北洋时期的律师惩戒制度是对大陆法系中日本制度的借鉴,而有别于德国的相关制度.     

学生惩戒的行政法规制——兼对《普通高校学生管理规定》关于惩戒规定的反思

学生的惩戒分为事实上的惩戒、法纪上的惩戒和学业上的惩戒。由于惩戒对学生利益有着重大影响,必须加以制约。首先确立比例原则从宏观上保障惩戒的必要性,其次通过正当程序制约惩戒过程的恣意性,最后通过申诉与诉讼方式排除惩戒的违法性。目前,我国《普通高校学生管理规定》在惩戒程序、申诉范围、复议方式、惩戒的可诉性等诸多方面存在缺漏,有待修正。     

How effective is medical self-regulation?

Licensing and disciplining of physicians, police powers of the individual states, are carried out by boards and committees, the majority of whose members are physicians. How effective is medical self-regulation? I attempt to answer this question by examining several aspects of the disciplinary process such as the medical practice acts, inconsistencies in disciplinary actions, and the number and proportion of doctors disciplined during various periods. Also included in this study is an examination of obstacles to discipline, many of which are caused by hospitals and organized medicine. I conclude that medical self-regulation is of limited effectiveness.     

Use of the psychological inventory of criminal thinking styles to predict disciplinary adjustment in male inmate program participants

The Psychological Inventory of Criminal Thinking Styles (PICTS) was administered to program participants in two different federal prisons-a medium-security federal correctional institution and a maximum-security penitentiary-who were subsequently followed for a period of 24 months for evidence of disciplinary adjustment problems. Disciplinary outcome was measured by the total number of incident reports, the number of nonaggressive incident reports, and the number of aggressive incident reports received during the 24-month follow-up. Negative binomial regression was used to test the relationship between the eight PICTS thinking style scales and three disciplinary outcome measures because the total and nonaggressive disciplinary report distributions showed signs of overdispersion. The only PICTS thinking style scale to achieve statistical significance in this study was the Cutoff scale that successfully predicted total, nonaggressive, and aggressive incident reports in both samples.     

Developments in pharmacists' disciplinary processes and outcomes

Pharmacy disciplinary processes and outcomes protect consumers by deterring pharmacists from unacceptable practices and maintaining the reputation and standing of the pharmacy profession. It is important that pharmacists are informed of disciplinary processes and outcomes in order to predict what is regarded as unacceptable behaviour and the potential consequences thereof. Disciplinary procedures and outcomes also play an important role in maintaining public trust in the pharmacy profession and it is therefore important that the public has confidence in the disciplinary structure. The outcomes of pharmacy disciplinary cases that reflect the patient care role of pharmacists are particularly important in helping to determine pharmacists' changed professional responsibility and potential legal liability in the provision of these patient care services.     

Police Complaints and Criminal Prosecutions

The police complaints process is the sole means by which criminal proceedings are initiated against police officers after allegations by members of the public that they were the victim of an offence committed by officers when in the execution or purported execution of their duty. Yet this state of the law has hardly figured in recent debate, which has seen the complaints process examined almost exclusively as the preliminary stage of the disciplinary process. This paper considers police complaints, the criminal liability of the officer and the implications for reform of the process after incorporation of the European Convention on Human Rights.     

Practice of the statutory disciplinary system for health care psychologists in the Netherlands

A statutory disciplinary system for health care psychologists in the Netherlands was introduced in 1998. To provide an indication of the contribution of this system to monitoring the quality of health care psychology all complaints dealt with in the period 1999-2002 were studied. Questionnaires were sent to all 388 members of the disciplinary boards (response 89%) and 43 practicing lawyers (response 65%). The regional disciplinary boards dealt with 68 complaints about health care psychologists. A sanction was imposed 16 times (25%), mainly for sexual intimacies or a sexual relationship, violation of professional secrecy or incorrect statement or reporting. The statutory disciplinary system appears to be an important corrective instrument for serious forms of professional misconduct for health care psychologists.     

Long-term consequences of being placed in disciplinary segregation†

Being placed in restrictive housing is considered one of the most devastating experiences a human can endure, yet a scant amount of research has been conducted to test how this experience affects core indicators of prisoner reentry such as employment and recidivism. In this article, we use Danish registry data, which allow for us to link penal conditions to postrelease outcomes, to show how the reentry outcomes of individuals placed in disciplinary segregation, which is placement in restrictive housing because of disciplinary infractions, compare with those sanctioned for in-prison offenses but not placed in segregation. The results from matched difference-in-differences analyses show that Danish inmates placed in disciplinary segregation experience larger drops in employment and larger increases in the risk of being convicted of a new crime in the 3 years after release from a correctional facility than do Danish inmates who were sanctioned for a serious offense but not placed in disciplinary segregation as a result. Because being placed in disciplinary segregation, and restrictive housing more broadly, is so common, these results indicate that restrictive housing placement may be a key moderator of the effects of incarceration that merits more attention from criminologists, provided the associations shown here represent causal effects and generalize.     

作为法哲学范畴的“幸福”——关于“幸福”在法学理论“学术地形图”中的定位问题之思考

法学理论研究应当适应时代需要,不断修正并更新自己的范畴体系。在法学理论的"学术地形图"中,将幸福定位为从属于法学理论学科体系价值论部分的普通法学范畴,具有正当性与合理性。幸福研究,是一个"理论发现"的过程。     

高等学校对学生纪律处分的法理分析

由于高等学校对学生纪律处分和纠纷解决的立法不完善,导致各高校纪律处分的实施和对被处分学生的救济方式大相径庭。本文探讨了高校纪律处分的法律依据、纪律处分的性质及其与行政处罚的关系,认为高校纪律处分是一种惩戒性的具体行政行为,被处分学生不服可以提起行政诉讼。     

Professional disciplinary proceedings against expert medical witnesses

Witnesses in legal proceedings are protected from civil liability based on their evidence. This immunity is founded on public policy considerations, particularly the belief that witnesses would be less willing to provide full and frank evidence if they were at the risk of civil proceedings based on their evidence. But witness immunity now appears to be subject to an important qualification. The English Court of Appeal has confirmed that witness immunity does not prevent the commencement of professional disciplinary proceedings against an expert witness. In General Medical Council v Meadow [2006] EWCA 1390 the court upheld a disciplinary complaint made against an expert medical witness, even though the complaint was based on that doctor's witness evidence. The Court of Appeal reasoned that the underlying purpose of professional disciplinary proceedings, which is to protect the public, could sit comfortably with witness immunity. The result seems to be that people unhappy with witness evidence cannot sue the witness but can make a professional disciplinary complaint. This apparent gap in witness immunity is important to all professionals who might give evidence.     

The use of discretion in prison disciplinary committees

Prison disciplinary committees are faced with the formal role responsibility of adjudicating disciplinary cases in an equitable manner and the informal role responsibility of supporting the authority of the staff members who file charges of rule violations by inmates. Analysis of 630 disciplinary cases reveal that dispositional decisions vary according to the number of charged rule violations and that the pattern of the dispositional decisions can be explained by role conflict but not by the thesis that the cases vary in terms of the adequacy of the evidence supporting blameworthiness.     

The Psychological Inventory of Criminal Thinking Styles and Level of Service Inventory-Revised: Screening Version as Predictors of Official and Self-reported Disciplinary Infractions

A total of 159 male inmates screened with the Psychological Inventory of Criminal Thinking Styles (PICTS) and Level of Service Inventory-Revised: Screening Version (LSI-R:SV) were followed for a period of 24 months for evidence of disciplinary infractions (incident reports). Eighty-three of these inmates also furnished a self-report of disciplinary infractions occurring during the 24-month follow-up. The PICTS General Criminal Thinking (GCT) score and LSI-R:SV total score correlated with and accurately identified the presence of an officially recorded disciplinary infraction, an officially recorded severe disciplinary infraction, and a self-reported disciplinary infraction but only age and the GCT score achieved incremental validity when age, GCT, and LSI-R:SV were included as predictors in the same probit regression or loglinear survival equation.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

大学与学科规训——以教育学为例

在教育学的传统学科视野中,教育只是普通教育,大学教育并不隶属于教育学的研究范围.没有大学的复兴,没有学科制度化浪潮的出现,也就没有教育学的今天.大学教育实践规训了教育学,为其提供了组织建制和学术队伍;但教育学却忽视了大学教育的存在以及大学教育实践对教育学学科制度化的意义.从学科规训视角出发,教育学的重建必须注意教育学与大学的关系,必须重视大学教育实践对教育学的学科规训,必须重新检视教育学学科制度化的方方面面,必须从学科制度化与制度化学科的角度重新思考"教育学作为一门学科"这一古老而又年轻的命题.     

Student conduct,restorative justice,and student development: findings from the STARR project: a student accountability and restorative research project

The STudent Accountability and Restorative Research (STARR) Project is a multi-campus study of college student disciplinary practices in the USA, comparing traditional conduct hearings that use restorative justice practices alongside traditional college student misconduct hearings. A coherent set of learning goals in college student conduct administration and a robust data-set capable of measuring student learning across different types of disciplinary practice, in particular, comparing traditional ‘model code’ practice with emerging restorative justice processes are examined. Integrating several student development theories, we identify six student development goals: just community/self-authorship, active accountability, interpersonal competence, social ties to institution, procedural fairness, and closure. The STARR Project includes data from 18 college and university campuses across the USA. We analyzed 659 student conduct cases based on surveys of student offenders, conduct officers, and other participants in the conduct processes. Using multiple regression to control for a variety of influences, we determined that the type of conduct process used is the single most influential factor in student learning. In addition, restorative justice practices were routinely found to have a greater impact on student learning than model code hearings.