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.     

检察环节证据合法性审查实证研究

修订后的《刑事诉讼法》规定了检察机关的非法证据排除义务,并对检察环节开展证据合法性审查的具体程序和相应职责予以了明确规定。从司法实践来看,侦查活动的密闭性、审查模式的单一性、立法的不完善以及在审查过程中自由裁量缺乏必要的规制等问题制约了证据合法性审查的实效。为此,有必要从审查程序、配套制度以及认证规则等方面予以完善。     

论辩护取证与侦查取证的关系

辩护取证和侦查取证构成了刑事调查的二元结构。在其相互制约中,可最大程度地接近案件事实。在研究犯罪嫌疑人辩护权与辩护律师相应权利的基础上,探讨新刑诉法实施后,辩护律师所具有的调查取证权利。律师还不能向警方申请阅卷,也不能在会见在押嫌疑人时向其核实证据;但在会见中,他们拥有不被监听的特权。而且,辩护律师有以"见证人"身份监督强制取证措施的权利。在监督侦查活动中,他们可以提出排除非法证据的要求。在侦查阶段,辩护律师的取证权,一般是外部调查取证权。辩护取证和侦查取证具有权属不同、手段多少不同、活动范围不同、活动的方向不同等特点,其体现的是控辩双方的法律制约与平衡。     

司法政策与监管政策的竞争——基于信用卡纠纷裁判的观察

政策对司法裁判产生实然的影响,当司法政策与监管政策发生竞争时,作为裁判者的地方法院面临选择困境。信用卡民事纠纷实证研究表明,法院对费率限定的司法政策与费率约定监管政策的认同基本抗衡并受到政策解释路径的影响。改进政策在技术层面的适用,应发挥抽象规则的威慑力,关注政策可能的不利后果,加强个案裁判说理论证。而从根本上化解政策竞争,需要建立司法权与监管权协调机制。一方面,加强职能履行过程的协调,适用法律对政策竞争予以解释,运用消极司法审查发挥个案裁判灵活性;另一方面,加强政策制定程序的协调,横向上明确规范性文件征求意见程序,纵向上完善规范性文件备案审查程序,从而超越政策竞争,实现协同治理。     

让尾巴摇狗：美国情态证据实证研究

情态证据指的是在庭审时,被告人或证人等的面部、声音或身体等各部分及其整体上表现出来的能够证明案件真实情况的材料。情态证据至今仍被（西方）法律认可为判断证人可靠性的重要基础,在现代司法中起着至关重要的作用。确保审判者能够观察证人作证时情态的机会,为公开审判（开庭审判）提供了历史的和现代的正当性。在美国司法体系中,陪审团可以合法运用证人席上证人的情态证据;对于证人席外情态证据的使用则在实际上存在,法律上没有形成统一而稳定的规范。法官可以在证据排除、藐视法庭罪、量刑、听证、案件事实判断和陪审团选择程序中使用情态证据。检察官可以在辩诉交易和量刑建议、陪审团候选人＂无因排除＂和审判程序中合理使用情态证据。律师在诉讼过程中不仅从法律意义上,更从诉讼策略意义上运用情态证据。     

Sexually Violent Predator Evaluations: Empirical Evidence,Strategies for Professionals,and Research Directions

Several states have passed civil commitment laws that allow the precautionary detention of sex offenders who have completed their criminal sentences. Over 2,500 sex offenders have been committed across states with such statutes and several thousand more sex offenders have been evaluated. Most statutes call for an evaluation of risk by a mental health professional and, although each state statute is worded differently, three main elements common to sexually violent predator evaluations are used to guide evaluators: mental abnormality, volitional capacity, and likelihood of future sexual violence. The current article presents empirical evidence for the main tenants of these forensic evaluations, provides recommendations for evaluators in light of current limitations of evidence, and offers suggestions for future research in this area of forensic assessment.     

Local Governance and Redistributive Policy: Explaining Local Funding for Public Defense

In many American states, public defense is provided at the county rather than state level (Langton & Farole 2009 ). Local governments have discretion over implementing and funding the right to counsel, resulting in considerable variability in programs and funding levels. Placing this issue in the theoretical context of redistributive policies and politics, we investigate decisions on funding this service across upstate New York counties. Using as a point of departure Paul Peterson's classic explication of community politics, we first model variation in funding as a function of counties' fiscal capacity, need for services, and costs of supplying legal representation. We also test Peterson's prediction that local political factors will play little if any role in budget decisions. Second, through interviews with program administrators we explore the characters of twelve defender programs in which expenditures departed from the model's predictions. We find that three factors—which we term “influence,” “infrastructure,” and “ideas"”—also vary directly with levels of funding. We conclude with a discussion of the implications of these findings for theoretical thinking about due process policies and local politics, and for policy debate over how best to ensure adequate counsel in criminal court.     

Efficiency in Banking: Empirical Evidence from the Czech Republic

The paper examines the cost efficiency of the Czech-banking system in the 1990s by applying the distribution free approach model. Reported results indicate that foreign banks were on average more efficient than the other banks, although their efficiency was comparable with the ‘good’ small banks’ efficiency in early years of their operation. Based on the estimated results it is argued that early privatisation of state-owned commercial banks and more liberal policy towards foreign banks in the early stage of transition would have enhanced the efficiency in the banking system.     

我国《劳动合同法》中的告知义务研究

《劳动合同法》设置告知义务的目的是保障当事人之间信息顺畅流通,促使信息实现均衡,在此基础上,通过对该法中与告知义务有关法条的深度解释,使告知义务在法律实践中发挥出更积极的作用。     

Networking and Knowledge Transfer Between Research and Industry in Transition Countries: Empirical Evidence from the Slovenian Innovation System

Using empirical data from an innovation survey carried out in the Republic of Slovenia in 1997/1998, the paper analyses the innovation-relevant co-operation pattern between different kinds of research institutes and industry. The hypothesis is made that system transformation is not yet accomplished in Slovenia, and that the innovation system is still fragmented. While there is intense co-operation between Slovenian research institutes and companies, the level of co-operation between university institutes and industrial firms remains below the average of all Slovenian research institutes, although one focal point in the co-operation activities of university institutes is the support of firms in market introduction. Mainly larger institutes co-operate with larger firms, whereas small institutes hardly co-operate. Consequently, the challenge of innovation policy is to integrate all participants of the Slovenian innovation system in a structure of mutual knowledge and information exchange.     

Toward Subnational Comparative Cultural Policy Analysis: The Case of Provincial Cultural Policy and Administration in Canada

Comparative policy analysis is an underdeveloped field of study in Canadian policy scholarship at the national and subnational levels. Cultural policy research is also underdeveloped in Canada, particularly at the provincial level. This article aims to contribute to the development of subnational comparative cultural policy analysis by assessing the analytical value of utilizing national-level cultural policy approaches as referents for provincial comparative analysis. We develop four main approaches to cultural policy and administration—the French, British, American, and hybrid (mixed) approaches—and explore their applicability to analyzing the origin and evolution of cultural policy and administration in five Canadian provinces. The article draws on a recently concluded three-year national study of provincial and territorial cultural policy and administration codirected by authors Gattinger and Saint-Pierre.     

Bourdieu and Foucault: A Conceptual Integration Toward an Empirical Sociology of Prisons

Although the similarities between them are under analyzed, Pierre Bourdieu’s and Michel Foucault’s theories of culture and power are interrelated in some compelling ways. Outline of a Theory of Practice (1977) and Discipline and Punish (1979) are two of the most influential contributions in post-structural and postmodern theory. Yet, far more attention is paid to Foucault’s contributions in criminology than to Bourdieu’s. This essay brings together the work of these influential theorists to argue for a critical examination of the sociology of prisons. Bourdieu’s concepts of: (1) habitus, (2) ethos, (3) doxa, and (4) the theory of practice are related to Foucault’s ideas about (1) discipline, (2) docile bodies, (3) panopticism, and (4) history of the present by comparing specific examples from the original works. Then, the combination of those primary concepts is used to address specific methodological concerns researchers should consider when doing empirical research in prison.     

Policy Monitoring and Ministerial Survival: Evidence from Multiparty Presidentialism

Studies on policy monitoring and ministerial survival within coalition governments are usually conducted separately. In this study, we bring these topics together and argue that the strategy of coalition partners to oversee the implementation of one another's policies has surprising consequences on the duration of office-holding ministers. Our main theoretical insight suggests that the degree to which ministers behave as faithful agents of the government depends on their expectations about their partners' monitoring behavior, such that when they expect to be under high scrutiny, they moderate their drifting behavior. Using evidence from legislative information requests on the activities of individual ministers over all multiparty cabinets formed in Brazil between 1995 and 2014, we demonstrate that: (1) greater policy monitoring by coalition partners is observed under more ideologically heterogeneous cabinets, and (2) more frequent policy-monitoring efforts by coalition partners lead to a lower ministerial replacement within the government term.     

非法证据排除规则的实证分析

2010年7月1日,最高人民法院、最高人民检察院、公安部、国家安全部和司法部联合制定的《关于办理刑事案件排除非法证据若干问题的规定》（以下简称《非法证据排除规定》）生效实施,这是我国刑事诉讼非法证据排除规则发展进程中的里程碑事件。然而,“理论是灰色的,实践之树常青”,