Anderson v Dredd [2137] Mega-City LR 1

Administrative—judgment on the nature of judgment—conflict between Judges in judicial practice—claimant (Judge Anderson) challenges the judicial capacity of respondent (Judge Dredd)—claimant open and fluid in judicial style—respondent certain and authoritative in judicial style—insights from Psi Division on the role of judgment in the universe—whether respondent is a good judge—whether judgment closes down meaning—whether respondent is inhuman—whether judges are inhuman—whether judging is horrific—insight from twentieth century fiction on the place of humans in the universe—horror of HP Lovecraft—suppression of horrific cosmic context within judicial institution—suppression for the good of society.     

撩开鉴定结论的"神秘面纱"

鉴定结论是具有专门知识的人接受委托或聘请,运用自己的知识、经验或技能,对案件中专门性问题作出的判断或推论.鉴定结论既有主观性,又有客观性,是两者的辩证统一.鉴定结论形成的方式有逻辑判断、经验判断和规范评价.从本质上看,鉴定结论属于"专家意见".目前,鉴定中使用的鉴定标准有3种基于个人经验的主观性标准、基于逻辑实证主义的客观性标准和基于建构主义的社会普遍接受标准.在诉讼中,司法人员和当事人不能对鉴定结论预设过高的证明力.     

Taking Sides? Issues of Bias and Partisanship When Researching Socio-political Conflict

The article unpacks the issues of bias and partisanship—and the risk of being accused of these—which confront social scientists who study socio-political conflict. Drawing on the author’s experience when conducting research on the conflict between animal liberation activists and their state and corporate adversaries in Britain (1999–2014), the article argues for a relational research approach—focusing on the interaction between contending parties, rather than study stakeholders singly—as a way to overcome challenges of taking sides when studying socio-political conflict. The debate generated by Howard Becker’s classic essay “Whose side are we on?” (1967), now 50 years old, is used throughout the article as a point of reference for addressing the issues involved. The argument is made for constant reflexivity during research on radical social movements, and for “temporary bias” during qualitative fieldwork.     

Parenting without Protection: How Legal Status Ambiguity Affects Lesbian and Gay Parenthood

Through the lens of lesbian and gay parenthood we ask how individuals who experience “legal status ambiguity”—that which emerges when legal fluctuations combine with divided attitudes, ignorance of the law, and autonomous institutional gatekeepers—exercise their legal rights and responsibilities. The results from thirty‐one interviews with lesbian and gay parents in Oregon and their six adult children suggest that the state's fluctuating legal and social climates for lesbian and gay parenting between 1985 and 2013 presented significant challenges for two generations of same‐sex parents. Although both cohorts created and utilized a range of legal and social mechanisms to assert their legal rights, they found these rights to be controlled as much by gatekeeper perspectives as by legal force. After the 2015 Obergefell ruling on marriage equality, lesbian and gay parenting status remains a site of ongoing legal and social contestation, providing insight into the risks and challenges of legal status ambiguity.     

Victims' Responses to traumatic life events: An unjust world or an uncaring world?

Although the psychological literature has generally equated deservingness and justice, victims' responses suggest the need to disentangle the two concepts. Victims usually feel their traumatic experience was undeserved but typically do not consider the outcome in terms of justice or fairness. Rather, their feelings about not deserving the victimization derive from a second type of moral judgment involving caring rather than justice. These two orientations are discussed in light of recent developments in work on moral reasoning. A framework for understanding the trauma of victimization is presented; the shattering of assumptions related to a caring world—in which people are protected from harm—is highlighted in this model. The crucialrole of social support and specific cognitive strategies used by victims in the aftermath of their victimization are discussed in terms of survivors' efforts to rebuild their assumptions about a caring world. Although concerns about justice are less common among survivors, an effort is made to discuss when these isues are most apt to arise.     

美国宪法解释方法之要素分析

美国宪法解释方法虽各不相同,但每一种方法论背后基本上都围绕着相同的元素进行解释,这就是：宪法文字的含义、立宪者意图、司法判例和价值判断。无论上述哪种情况,总会涉及到法官的价值判断,这是无法摆脱的现实。只要是对文字语言的解释,解释者必然会将解释建立在自身的价值判断之上,关键是这种价值是否符合人类的整体价值和社会进步的价值观。     

Constitutionalising the Market,Marketising the Constitution,and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law

Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law—whichever model of the social market economy it is thought to embody—and is best abandoned.     

儿童美德的形成与道德发展

美德是道德教育理论中的一个重要概念,它对儿童道德发展至关重要。美德有四个基本成分：优良品质、中庸之道、意志力和内在的善。美德的这四个基本成分是儿童道德社会化的基础。儿童美德形成的途径主要为：通过儿童道德习惯的养成和移情体验形成儿童优良的品质,创设适当的环境矛盾教孩子学会采用中庸之道做出正确的道德判断和选择,通过意志力的培养帮助儿童克服意志的弱点和形成自律的习惯,通过内在动机的激励帮助儿童形成为获得内在的善而工作和学习的习惯,为儿童未来的道德生活莫定发展的坚实基础。     

司法确定力的形成逻辑

司法确定力是与法院的宪法地位密切相关的,宪法对法院的独立地位以及解决纠纷、救济权利和发展法律的功能定位,是司法确定力的权威渊源;司法确定力来自于司法的管辖权威,法院在法律规定的范围内、在自己的能力范围内受理案件,运用法律知识、司法理性和司法经验,按照司法规律对案件事实和法律适用问题进行权威判断,为司法确定力提供了前提;司法确定力源于司法的整合权威,法院在审理案件过程中,通过对立法时的民意与法律适用时的民意、普遍正义与个别正义、法律正义与社会正义的有机结合建构了司法的整合权威,为司法确定力提供坚实的基础;司法确定力依赖于裁判的执行权威,当事人自觉履行生效判决的文化意识和国家强制执行生效判决的权威能量为司法确定力提供坚强的保障。     

How Race,Sex, and Age Frame the Use of Authority by Local Government Officials

Thanks to the civil rights movement, women and racial and ethnic minorities increasingly hold positions of public authority—but they experience and exercise this authority differently from white men. Based on 162 narratives collected from 49 US local government officials (city administrators and police), I find that women, minorities, and younger officials in positions of authority face a paradox of rules. Because they have lower social status with the public and within their organizations, they must rely on formal and explicit rules as a key basis for their authority, but such reliance causes their very authority to be questioned. Social status based on implicit assumptions about social identities, including race or ethnicity, sex, and age, originates outside of organizations and has effects society wide. This study shows that social status continues to permeate US local government organizations in both subtle and explicit ways, even in bureaucratic settings that are formally committed to merit and professional norms.     

DOES THE BUSINESS JUDGMENT RULE HELP PROMOTE CORPORATE SOCIAL RESPONSIBILITY?

The business judgment rule (BJR) is a U.S. corporate law concept that has gained international recognition. It has been moulded, particularly in the definition of the Delaware courts, to protect the managerial business discretion, in other words to protect directors’ decisions from judicial review. Corporate social responsibility (CSR) questions the relationship between corporation with a business purpose and society. More and more attention is drawn to the various impacts of corporate decisions on society, asking for the necessity for directors to take these impacts into consideration when making business decisions. At the centre of CSR and the BJR are the fiduciary duties of the directors — the duty of diligence and the duty of care — and the question as to if the directors have breached their duties and if they have fulfilled them in a CSR compatible manner. This paper discusses how the BJR helps promoting CSR by discussing the advantages and disadvantages (real or apparent) of the BJR with respect to CSR.     

The Socialist Way of Life: The Concept and Possible Directions for Empirical Research

The inclusion in the agenda of Marxist social science of the set of problems embraced by the notion "way of life" and "socialist way of life," and the posing of these problems in Party documents of recent years — above all those of the Twenty-fifth Congress of the CPSU — have given rise to truly unprecedented activity by representatives of various social sciences: philosophers and economists, sociologists and lawyers, historians and theorists of propaganda. The bibliography of books and journal articles has long since exceeded a hundred titles. Yet under these circumstances, each individual taking up his pen to offer "one more" judgment on the problem must start by making up his mind in what system of knowledge (consciousness) the investigation of "way of life" should be undertaken, at what level of examination (reflection) of reality, with what goals, and so on.     

未成年人刑事案件社会调查制度论纲

未成年人一般具有极强可塑性。如果法官的判决是有利于其改过自新的,则此种基于刑罚个别化的判决对该未成年人而言,无疑是再社会化和预防犯罪的良方。蕴涵人格调查的社会调查制度应当是形成前述判决的基础。在我国少年司法制度尚不完备的当下,应以该制度的正当性为基点展开研究,以期运用于少年刑事司法实践。     

Sanctioning Traditional Crimes with Fines: A Comparative Analysis

Rising crime rates within traditional sanctioning patterns have resulted in a search for alternatives to incarceration in order to control both the economic and the social (humanitarian) costs of punishment. The paper explores this response in four countries: England, Germany, Sweden, and the United States—all modern, industrial democracies. The paper focuses upon the response in terms of the role accorded monetary penalties as an alternative to incarceration. This role is analyzed in terms of the actual use of fines relative to incarceration, as a sentencing disposition for traditional crimes. The major finding is that among the four countries the United States accords fines a very minor role. The reasons for this difference are explored and it is concluded that the use of fines in the United States—when compared to European experience—appears to be far below the level that would minimize the economic and social cost of punishment.     

Law,psychology, and children

Society's treatment of children and families is guided by the premises that children lack the ability and/or the capacity to be autonomous directors of their own lives and that the private autonomous family is best suited to provide for the best interests of children. These premises are based on two assumptions: (a) that parents will act in their children's best interests, and (b) that parents possess the maturity, experience, and judgment required to make life's difficult decisions, which children lack. We explore these premises and assumptions along with the concept of the best interests of children and the relationship between children's capacities and children's rights. We conclude that collaboration between legal scholars and social scientists will enhance the likelihood of more informed decision making about these issues.Appreciation is expressed to Sarah L. Cook, without whose assistance this special issue would never have been completed.     

公众判意的法理解析——对许霆案的延伸思考

本文把社会公众对于司法个案处置的主流性、主导性意见表述为公众判意。公众判意不仅体现了公众对司法个案处置的评价与期待,更蕴含着公众复杂的社会愿望和社会诉求。表达判意已成为公众参与政治、参与社会管理,实施对司法社会监督的一种形式。正确认识公众判意的特性及形成的社会条件,揭示公众判意的合理性与偏失,赋予公众判意以恰当的地位,是我国推进法治,尤其是深化司法改革的一项有益实践。     

GENDER,SOCIAL NETWORKS,AND RESIDENTIAL BURGLARY*

Criminological researchers have devoted substantial attention to the nature and dynamics of residential burglary, but the role played by gender in shaping this offense remains largely unexplored. Feminist ethnographers have documented the fact that streetlife is highly gendered, and that this typically serves to marginalize women's participation in criminal networks and activities. Therefore, it appears likely that residential burglary—a prototypically social offense that requires good network connections—will be strongly influenced by gender dynamics. In this study, we analyze in‐depth, semi‐structured interviews with 18 female and 36 male active residential burglars to examine the ways in which gender structures access to, participation in, and potential desistance from, residential burglary. In doing so, we aim to provide an insider's view of how gender stereotypes are expressed, reinforced, and exploited within streetlife social networks, and how these networks shape the lived experience of men and women engaged in residential burglary.     

国家转型与治理的法律多元主义分析——中、俄转轨秩序的比较法律经济学

国家治理结构包括法律、政策与关系规则之三元组合,三者之间存在互补、替代与转化关系。转型过程中,法律和政策都不完备,如何维持平稳转型,防止良性社会资本的耗散和恶性关系规则对社会秩序的侵蚀,使人治、法治和关系治理形成互补效应,是规则实施多元化理论关注的焦点问题。中、俄两国转轨秩序演进的实践表明,根据三元甚至多元规则实施过程中的替代、转化、互补、互动等机制,实现相对平稳的法律变迁,是至关重要的。     

THE SIZE OF THE “CRIMINAL POPULATION”: THE PREVALENCE AND INCIDENCE OF ADULT ARREST*

The recent emphasis in criminological theory and research on “chronic offenders” assumes that involvement in crime is concentrated among a small group of offenders rather than being widespread in the population. To address this question, this study employs a longitudinal data base on criminal histories to estimate the prevalence of arrest—defined as the proportion of a population ever arrested—and the incidence of arrest—defined as the number of arrests incurred by those ever arrested—for an age cohort of young adults between the ages of 18 and 29. The results show that being arrested is a relatively common experience for young adults: nearly one-quarter of the entire cohort and one-third of the males in the cohort were arrested at least once. One of six males and two of five black males were arrested for an index offense. The data on incidence reveal the presence of a subset of “chronic offenders” who are responsible for a disproportionate number of arrests. However, defined in terms of three or more arrests for any offense, their numbers are smaller, but the data suggest it may be difficult to distinguish “chronic offenders” from “one-time” offenders because 60% do not recidivate. These findings suggest that the current preoccupation with chronic offenders may obscure the broader social structural factors that cause very large segments of the population to come into conflict with the law.     

传统法律文化:解读社会危害性的新路径

社会危害性是对犯罪的一种价值评判,而价值评判总是置身于一定的社会法律文化之中。因此,对社会危害性理论进行反思与改革,不能脱离传统法律文化。法律文化的相对稳定性,决定了对社会危害性不宜采取完全否定的态度。正确的做法应当是:吸收传统法律文化中的精髓,不断充实社会危害性的内涵。