关于监视居住几个问题的探讨

从保护人权、减少羁押角度看 ,设立监视居住强制措施是十分必要的 ;监视居住并非我国独有 ,有关国家的立法中也规定有此类强制措施 ;监视居住的本质属性是限制人身自由 ,与剥夺人身自由有本质区别 ;监视居住的地点是住处或指定的居所 ,但不是居住房屋以内的空间 ;监视居住可根据具体情况 ,采取不同的监视方式。     

The Deserving Worker: Decisions about Workplace Accommodation by Judges and Laypeople

Employment civil rights laws require employers to make reasonable accommodations for certain workers so that they can perform their jobs. The “reasonableness” of an accommodation request should be based largely on the cost of the accommodation relative to the company's resources, but how do people really evaluate such requests? This study examines determinations of the reasonableness of workplace accommodation requests made by trial judges and ordinary people. Using a 2 × 3 × 3 between‐subjects factorial design, we test the effect of worker identity (nursing‐mother worker, transgender worker, and Muslim worker) and cost on determinations of reasonableness. We find that (1) the identity category of the requesting worker impacts determinations of reasonableness by both judges and laypeople, (2) the cost of the accommodation impacts determinations of reasonableness, (3) judges are more likely to think that accommodation requests are reasonable than are laypeople, (4) there is a complicated relationship between accommodation cost and employee identity, and (5) the cost of the requested accommodation mitigates the effect of identity significantly for judges but less so for ordinary citizens. While judges are less influenced by the identity category of the employee‐requestor than are their lay‐counterparts, social status plays a role in determining what constitutes “reasonable accommodation.”     

Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision-Making

This article considers the implications for legal decision-makingof one aspect of research on children’s adjustment toparental separation: the significance for child well-being ofmaintaining a relationship with both parents, either by wayof contact with a non-resident parent or by means of a shared(dual) residence arrangement (known in some jurisdictions as‘joint physical custody’). It is argued that policy-makerswho have rejected recent calls for a statutory presumption ofchild/non-resident parent contact, or of equal division of achild’s time between parents, have acted appropriatelyin the light of the research evidence.     

The Influence of Actuarial Risk Assessment in Clinical Judgments and Tribunal Decisions about Mentally Disordered Offenders in Maximum Security

Research has shown that actuarial assessments of violence risk are consistently more accurate than unaided judgments by clinicians, and it has been suggested that the availability of actuarial instruments will improve forensic decision making. This study examined clinical judgments and autonomous review tribunal decisions to detain forensic patients in maximum security. Variables included the availability of an actuarial risk report at the time of decision making, patient characteristics and history, and clinical presentation over the previous year. Detained and transferred patients did not differ in their actuarial risk of violent recidivism. The best predictor of tribunal decision was the senior clinician's testimony. There was also no significant association between the actuarial risk score and clinicians' opinions. Whether the actuarial report was available at the time of decision making did not alter the statistical model of either clinical judgments or tribunal decisions. Implications for the use of actuarial risk assessment in forensic decision making are discussed.     

The Strategic Use of Formal Argumentation in Legal Decisions

In legal decisions standpoints can be supported by formal and also by substantive interpretative arguments. Formal arguments consist of reasons the weight or force of which is essentially dependent on the authoritativeness that the reasons may also have: In this connection one may think of linguistic and systemic arguments. On the other hand, substantive arguments are not backed up by authority, but consist of a direct invocation of moral, political, economic, or other social considerations. Formal arguments can be analyzed as exclusionary reasons: The authoritative character excludes—in principle—substantial counterarguments. Formal arguments are sometimes used to conceal value judgements based on substantial arguments. This paper deals with reconstructing problems regarding this strategic use of formal arguments in legal decisions, with a focus on linguistic argumentation.     

司法判决过程中的道德论证

当非理性民权表达充斥司法判决之时,势必要澄清和阐明司法判决过程中的道德论证,势必要在柔性实证主义(分离命题)和吸纳性整体阐释(统一命题)之间交往商谈,从这个意义上说,道德是可以论证的。在司法判决现实情境之下,道德论证在大前提论证中起到经验论证、非实证和非经验论证两项作用。     

我国民事判决既判力的范围研究

大陆法系既判力制度的核心内容是关于既判力范围的法律规范。既判力的范围包括主观范围、客观范围和时间范围。就主观范围和客观范围而言,我国与大陆法系国家基本一致,但是我国的相关法律规定零散而模糊,具体内容亦有不少不合理处,容易导致既判力在司法实践中的不当扩张。就时间范围而言,我国法律未有规定,导致司法实践中处理相关问题无法可依。为有利于实现民事诉讼解决纠纷的目的和维护法的安定性,我国应当参照大陆法系国家的既判力范围,就既判力的范围作出系统、明确和合理的规定。     

The Nature of Circuit Court Gatekeeping Decisions

This article provides an analysis of the nature of circuit court threshold decisions. Specifically, a model sensitive to the institutional context of the circuits is developed and tested across all threshold decisions in the sample and in more limited samples of proper party and proper forum votes. The results suggest that circuit court gatekeeping is a function of multiple factors, including circuit court law, litigant status, the lower court decision, and, at times, the ideological preferences of the circuit judge or that of his or her circuit.     

Children Exposed to Domestic Violence: Making Trauma‐Informed Custody and Visitation Decisions

This article explores the risks for young children and the challenges for courts that emerge when parents who are victims or perpetrators of intimate partner violence seek court decisions on child visitation or custody matters. We focus particularly on children age five and younger, a group that is disproportionately represented in families affected by intimate partner violence, and especially vulnerable to its traumatic impact. We examine the literature on children's response to violence between their parents and the literature on parental alienation, a counter‐charge that may arise when one parent alleges violence as a reason to limit the other parent's access to the children. We look at challenges faced by both mental health professionals and courts involved in custody determinations and make policy recommendations to help courts make trauma‐informed decisions that best serve children.     

Simultaneous Lineups,Sequential Lineups,and Showups: Eyewitness Identification Decisions of Adults and Children

Two experiments were conducted comparing the identification accuracy of children aged 3–15 years (N = 307) and undergraduates (N = 384) using target-present and target-absent simultaneous and sequential lineups and showups. Correct identification rates tended not to vary across either age of subject or identification procedure. However, children show a significant tendency to guess as indicated by their lower rate of correct rejection when the target is absent. The tendency for children to make false positive choices was particularly evident with showups.     

The Car as Avatar in Australian Social Security Decisions

This paper draws upon automobile semiotics and legal semiotics to argue that the car in Australian social security decisions becomes an avatar for the applicant that is then decoded into meaning streams concerning deservingness and prudence. It is suggested that this has two implications. The first it highlights the techniques where by a technical object (the car) and the ‘life’ of the applicant became bridged in law; and through that bridging life becomes ‘formatted.’ The second highlights the extent of automobile culture. The car has meaning beyond the highways and parking lots. The paper shows how these meanings have become integrated into processes of biopolitical governance.     

应急救援中的应急决策

应急决策作为应急管理的重要组成部分越来越多的引起人们的关注,如何作出科学性和时效性相统一的应急决策是一个重要课题.本文给出了应急决策的基本概念,说明并分析了应急决策区别于常规决策的特点,在此基础上,论述了应急决策理论研究的现状和常用的研究方法.同时,辅助应急决策支持系统在突发事件应急管理领域应用广泛,对典型事故灾难的模拟也是制定应急预案和辅助应急决策的一个重要手段,本文简要论述了它们的发展和应用.     

正义：我国行政决策的理性诉求

作为行政管理活动的首要环节和重要基础,行政决策解决了政治资源的定位和分配,从而决定着行政管理活动的方向及方式取舍,并以其特有的权威引导和保证社会发展的方向。政治正义性与合法性的原理要求我国的行政决策必须坚持正义的理性诉求。但由于权力寻租的存在,监督机制的不健全以及行政决策的技术基础不够理想,我国部分行政决策的正义性明显不足。要增强我国行政决策的正义性,必须从根本出发,完善行政决策的制度基础,提高行政决策的技术基础,扩大行政决策的社会基础。     

Separation and Reunification: Using Attachment Theory and Research to Inform Decisions Affecting the Placements of Children in Foster Care

Determinations regarding removal of children from home in maltreatment situations typically take into consideration the physical safety of the child. Less recognized and often underappreciated is the severe risk endured by the child as a result of separation from the caregiver, and the long‐term effects of the separation on the child. This article describes recent developments in attachment theory and research and their usefulness for placement decisions. We will explain how a child develops a secure attachment to a caregiver and review the deleterious consequences associated with maltreatment and separation. The case of a child in a foster/adoptive placement will be discussed in order to clarify common misinterpretations of attachment research and how attachment theory and research can inform permanency decisions that are in the best interest of the child.     

政治冲突的司法解决与宪法裁判的政治化倾向——谈宪法诉讼的性质

社会在不断地变动和发展,反映并用以调整社会关系的宪法也必然要相应地作出调整.从实用主义的视角来看,当旧的宪法规范已经不能够解决当前所面临的政治冲突的时候,以立宪主义为诉求的我们就应该探索新的解决方法.