The Totemic Authority of the Court

This article examines the place of the court within civil religion. It is argued that every civil religion is rooted in a magical anchor that in contemporary democratic civil religions is provided by the court. While in most institutions of civil religion totemic authority is represented, in court it is present. Therefore, court proceedings are occurrences of magic: they are performances (rituals and ceremonies) during which the sacred Thing is present. In court, the law itself and the clerical community to which it was entrusted assume the characteristics of the sacred Thing. The law appears under two facets: on the one hand, it is a norm and a word while, on the other hand, it is a Thing devoid of meaning and reason. Formalism is a magical mode of thinking that treats law as a timeless and meaningless Thing. In the course of the argument, the distinctions between ceremony and ritual, between social structure and communitas, and between religion and magic are reformulated, and the concepts of zone of familiarity and clerical community are laid out in a nutshell. This revised version was published online in July 2006 with corrections to the Cover Date.     

Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority

We propose a multilevel account of legislative Court curbing in order to assess existing explanations as to why such proposals come about. We argue that although Court curbing is commonly seen as the result of institutional conflict between Congress and the Supreme Court, it is best understood as a product of three interrelated factors: the individual motivations on the part of lawmakers, the partisan context in which they operate, and institutional disagreements between Court and legislature. We find evidence that micro‐level factors offer an important insight into Court curbing that institution‐focused explanations alone cannot.     

论人民法院在民事诉讼中的职权

法院是民事纠纷的裁判者 ,裁判权是其最基本的职权 ,然而 ,在围绕着这一职权的行使而展开的一系列程序中 ,又衍生出诸多权利 ,如程序控制权、程序事项裁决权、调查取证权、释明权、事实认定权等。程序控制权和程序事项裁决权是法院控制诉讼的发生、发展和终止的节奏和方式并对程序争议事项进行裁判的权力 ;调查取证权、释明权和事实认定权作为法院的三大审理权 ,在不同的诉讼模式下是有所区别的。笔者认为 ,在我国 ,法院不应通过职权干预调查取证 ;释明权作为一把双刃剑 ,应正确把握和运用 ;而事实认定权的行使 ,则必须通过建立一套科学的证据规则 ,以确保法官心证的公开化和客观化     

Citations to Authority in Supreme Court Opinions

This article analyzes citations used by the U.S. Supreme Court in its majority opinions. The research explores variations in citations and evaluates various explanations for these variations, including the potential impact of individual judicial style, legal factors, and group interaction in the formation of opinions. The article suggests that systematic analysis of citations holds potential for contributing to our understanding of the judicial process.     

法院院长职权结构优化论——基于《法院组织法》与《民事诉讼法》衔接的考量

法院组织理论与诉讼原理具有深刻内在联系,从《法院组织法》与《民事诉讼法》相衔接视角考察我国法院院长职权的层级结构,可以为全面深化司法体制改革提供理论支撑。大陆法系普遍认可法院院长具有适度的司法行政权,并以不侵害审判核心事务行使为前提。就我国现实而言,法院院长职权重塑的逻辑前提是审判业务与司法行政事务科学分类。对法院院长职权应划分为审判职权、司法行政职权。在审判职权行使方面遵循与法官同权原则,限制院长程序性决定权,确立院长审案分案的一般规则及动态调整机制;司法行政职权则应保持谦抑,开列院长司法行政职权清单有助于预防权力跨界。     

Time and Transcendence: Narrating Higher Authority at the Caribbean Court of Justice

This article examines the relationship between time and authority in courts of law. Newness, in particular, poses an obstacle to a court's efforts to establish authority because it tethers the institution to a timeline in which the human origins of the court and the political controversies preceding it are easily recalled. Moreover, the abbreviated timeline necessarily limits the body of legal authority (namely, the number of judgments) that could have been produced. This article asks how a court might establish its authority when faced with such problematic newness. Based on extensive ethnographic research at the Caribbean Court of Justice, I demonstrate how the staff and judges at this relatively young tribunal work to create a narrative in which the Court transcends its own troublesome timeline. They do this by attempting to construct a time‐transcendent principle of Caribbeanness and proffering the Court as a manifestation of this higher authority. The Court's narrative of its timelessness, however, is regularly challenged by far more familiar tales of its becoming, suggesting that in this court, as in all courts, the work of building and maintaining authority is ongoing.     

Authority to treat: a comparative look at the jurisdiction,practice and procedure of the Supreme Court of Victoria,Children's Court of Victoria and Family Court of Australia in medical matters

The medical treatment of children is a crucial interface of law and medicine. The problems in this emotive area of law are compounded by the current state of the law in Australia which is uncertain and fractured. It is the purpose of this article to examine the jurisdictions of the various courts that stand competent to order that a child undergo medical treatment in circumstances where the child's parents/guardian refuse to provide consent to such treatment. The problems associated with the present system are identified and proposals for the reform of the current system offered.     

论检察权的定位——兼论我国检察机构改革

作为国家权力体系中的一种过渡性权力,检察权兼具行政权与司法权的双重属性.与此相适应,检察权的运作也遵循着检察一体与检察独立的双重机制.检察一体,包括组织一体和心理一体两个层面;而检察独立,则包括组织独立与功能独立.检察权独立行使,是其承担法律监督功能的基础.为此,必须通过相关制度设置,从资源、身份、资质、权利等方面保障检察权的独立行使.在我国,虽然<宪法>规定检察机关依法独立行使职权,但是由于宪法和法律对保障检察机关组织独立的具体措施缺乏规定,致使检察机关独立行使职权面临着诸多障碍,其中主要是检察权地方化问题.因此,当前我国检察机构改革的方向应当是保障检察权的独立行使.     

The Court Settles the Case!

The discussion of problems of legal defense, begun this year in the pages of LG, has produced a lively exchange of opinions and has touched on important questions of our criminal proceedings.     

The Admissibility of the R-PAS in Court

The admissibility of the Rorschach has been a concern of forensic psychologists for many years. The focus of this debate has been the Comprehensive System, which is the most researched of the current Rorschach Systems available in the USA. However, recently, a new, competing system has been published: the Rorschach Performance Assessment System (R-PAS; Meyer et al., Rorschach Performance Assessment System: Administration, Coding, Interpretation, and Technical Manual, 2011). Using Heilbrun’s (Law and Human Behavior 16:257–272, 1992) guidelines as a framework, we examine the admissibility of this new system according to the standards outlined in Daubert (1993) and Frye (1923). We conclude that we have reservations about the admissibility of the R-PAS in court at the present time, notwithstanding ongoing work on this system.