A voice for change? Trust relationships between ombudsmen,individuals and public service providers

There has been a debate for years about what the role of the ombudsman is. This article examines a key component of the role, to promote trust in public services and government. To be able to do this, however, an ombudsman needs to be perceived as legitimate and be trusted by a range of stakeholders, including the user. This article argues that three key relationships in a person’s complaint journey can build trust in an institution, and must therefore be understood as a system. The restorative justice framework is adapted to conceptualize this trust model as a novel approach to understanding the ombudsman institution from the perspective of its users. Taking two public sector ombudsmen as examples, the paper finds that voice and trust need to be reinforced through the relationships in a consumer journey to manage individual expectations, prevent disengagement, and thereby promote trust in the institution, in public service providers, and in government.     

Belief in a Just World and Commitment to Long-Term Deserved Outcomes

We investigated whether people need to believe in a just world in part because such a belief helps people to work toward long-term goals and to do so in such a way that they are deserved. We assessed participants' long-term goal focus and also their commitment to deserving their outcomes (via a psychopathy scale). In a second session, participants were then exposed to a victim whose situation did or did not contradict a belief in a just world. When the victim's situation contradicted a belief in a just world, the greater the participants' tendency to focus on long-term outcomes, the more they blamed the victim for her misfortune; but this relation only occurred for participants with a strong commitment to deserving their outcomes (i.e., those low in psychopathy). The results are consistent with our argument that, given the function of the belief in a just world proposed in this article, people would have a greater need to preserve the belief (e.g., by blaming victims of injustice) the greater their investment in long-term and deserved outcomes.     

国人对民决团在英美法庭中的功能的误解

民决团仅仅负责事实审,决定事实问题;法官则负责法律审,决定法律问题。这个认识的错误在于：普通法中没有“事实审”、“法律审”的术语,这是国人杜撰出来的。普通法事实发展出来法律,法律是事实的积累。民决团事实上既决定法律又决定事实。它在美国,具有最高权力,大于总统、国会和最高法庭。另外民决团在美国7个州还决定量刑,在有死刑的州,还决定死刑。事实与法律的区分和混合,有助于法官将复杂问题交给民决团决定并在上诉中捍卫民决团的最高权力;也有助于法官对法律问题下命令、进行违宪性审查。总之,理解民决团的最高权力,是理解普通法的关键。     

行政法上请求权的理论构造

公法请求权根源于并服务于基础性公法权利,但具备独立实体权利的要素,具有相对的独立性。确保或回复基础性公法权利不受干扰状态的干扰防御请求权和作为受益权核心内容的给付请求权是公法请求权的两种典型形态。公法请求权的确认和保护,对基础性公法权利的实现具有重要意义,只有实现对公法请求权的全面保护,方可实现对基础性公法权利的全面保护。我国应当通过立法和司法的革新措施促进公法请求权的行政法制保护,以提升公法权利的行政法保障水平：一方面,行政立法应当树立对公法请求权予以直接立法确认的理念;另一方面应通过行政诉讼制度的改革促进公法请求权的司法保护。     

Teaching law in Scotland

ABSTRACT

The theory of threshold concepts has become a popular way to describe the difficulties students face when trying to grasp fundamental ideas in a discipline. In law authors have suggested a range of concepts as thresholds. However these suggestions conflict with each other, and have not emphasised the way in which students repeatedly encounter such thresholds. Using variation theory and the concept of knowledge capability this article suggests that the Threshold Capability Integrated Theoretical Framework may be a way to resolve those differences and to highlight the ongoing nature of liminality in becoming a professional. Students may grasp initial threshold concepts early in a degree or subject, develop the ability to manipulate and use them in a variety of settings towards the end of the degree, and develop a lifelong professional ability to use them in diverse settings after graduation. Law students, lawyers and indeed law teachers may be best seen as in a constant state of learning. The uncertainty that goes with that learning is to be embraced, and encouraged as part of the way we teach law.     

中国传统司法思维模式的文化分析

中国古代法官在审判过程中,为追求实质正义-无讼与和谐,往往会舍法而取情理,依情理进行审判。这种法律思维模式与西方的严格形式主义相对,被称为实质性思维模式,它是中国古代审判文化的一个特质。其产生的文化根源是中国人对和谐、无讼理想社会的追求及越过事物的形式追求实质内容的思维模式,以实质性思维处理案件亦可达至息讼止争的社会目的,但这种思维模式也造成了中国人法治观念的淡漠,同时阻碍了中国法治社会的建立。然而,无论如何它作为中国传统法律文化的一部分又是无法抛弃的,只能期待我们现代人对其进行创造性的转化。     

An exercise in scientific problem-solving: Illustrating the utility of the principles of the Sydney Declaration

In forensic science, scientific problem-solving is characterized by the recognition of traces as part of iterative reasoning processes to assign meaning to those traces in order to interpret and reconstruct events. Through a set of fundamental principles, the Sydney Declaration presents a foundation of forensic science through the lens of a scientist. The distinction between a scientist and a technician may require clarification—where a prototypical technician follows a prescribed set of ‘standard operating procedures’ and may be limited in the interpretation of the resultant data, the scientist utilizes knowledge, skills, experience and imagination to identify the issue at hand and develop lines of inquiry for testing and interpretation. This case report draws on the Sydney Declaration in order to highlight the importance of learning about events from careful consideration of both obvious and less obvious traces. A case involving the assault of a police officer is examined to illustrate the use of the Principles: the problem originally defined by investigators at the scene and later by prosecutors resulted in incorrect analysis and interpretation of traces, hampering efforts at an accurate reconstruction of events. This exercise serves to demonstrate that in order to engage in scientific problem-solving, it is necessary to apply observation and reasoning in forensic investigations in order to yield an outcome that can be clearly articulated. The overarching goal is to support the drive to improve forensic science practice, education, and research through a case illustrating the value of the principles of the Sydney Declaration.     

技术冲击、非技术冲击与中国劳动就业的实证分析

运用结构向量自回归(SVAR)方法,将技术冲击和非技术冲击对中国劳动就业的动态效应进行实证分析,得出的主要结论有:劳动就业对正向技术冲击的反应为先立即下降,随后持续上升并回到初始状态,而对正向非技术冲击的反应呈现出在一定时期内先升后降的驼峰形特征,且具有短期效应;生产率水平对技术冲击的反应在一定时期内表现出持续上升的驼峰特征,且具有长期效应,而对正向非技术冲击的反应为先立即上升,后持续下降回到原状态,且具有短期效应;劳动就业波动的根源是由技术冲击和非技术冲击共同引起的,两者都起到一定作用.这些结论对我国当前调整宏观经济政策,以促进劳动就业具有重要的启示.     

侵入性创伤的微分析——死亡方式的多学科综合分析法

通过概述荷兰法庭科学研究所内法医病理学、法医人类学、工具痕迹学及微量物证学多学科联合进行致伤物推断及致伤物认定的方法。不同领域的法庭科学专家对于案件的检验结果可以相互印证,综合分析各专业检验结果后,得出案件的鉴定结论,并为法庭提供最有效的证据。多学科交叉检验的方法得出的结论,显示出极高的法庭证据价值,更为重要的是能够为致伤物推断和认定提供刑事侦查方向。     

Hermes: God of Thieves. Plagiarism in Twentieth Century Literature

The question of imitation moves from an open and obvious phase, the phase of Classicism, during which the models from antiquity were imitated with pride and with a conscious desire to set fixed and codified models for compositions, following norms for distinction in well-defined genres, to the period of Romanticism, during which the concept of the work's uniqueness predominated, and the work was seen as the link between God and the world. During the twentieth century the attitude towards plagiarism changed again: in our century the question of artistic originality becomes anxiety-provoking and the relationship with tradition becomes competitive. The heavy weight of tradition creates in the writer a desire to exorcise in some way the fear of the death of creative originality and gives rise to the playful, demystifying re-presentation of previous works, in an attempt to desecrate genres and precursors, re-creating them overtly and covertly at the same time. Thus plagiarism transforms itself into a new creative force, in which tradition is no longer imitated in a subservient, nor a reverential fashion, nor in the sense of the subdivision of pre-established genres. Plagiarism becomes instead a challenge on the same grounds of the canonical authors, demonstrating in this manner a strong capacity to capture the essence of the author's own language (a link to the new emphasis on the act of reading). This revised version was published online in July 2006 with corrections to the Cover Date.     

从若干起冤案看人身自由的宪法保护

人身自由是公民全部权利中最基础的和前提性的部分。在人身自由保护领域,近年来不断披露出的一些重大冤案向社会发出了警示,要求人们给予人身自由保护问题以足够关注。保护人身自由固然需要完善刑事诉讼程序,但从根本上看却首先是宪法课题。全面、直接保护人身自由,既是200余年来的宪法传统,也是当代宪法发展的趋势。我国宪法保护公民人身自由的程序性条款不足,因而公民能够享有的相应程序性权利偏少。我国需从补充宪法程序性条款、建立行之有效的违宪审查制度和保障审判权独立等方面入手来提升人身自由的保护水平。     

法经济学视野中的行政法与民法的分界

对于不当行为,立法者是选择民法还是行政法进行控制,一般需要考量四个要素：当事人与行政主体掌握的行为风险信息方面的差异、加害人的赔偿能力、索赔威胁大小和行政成本。对于损害小、损害集中且发生率低的日常行为,应选择民法进行规制;对于发生率高、损害大、发现率低、损害分散的风险行为,行政法进行控制的社会效果更为明显。当同时选择两种控制机制时,遵守行政法规一般不构成加害人对抗受害人诉求的抗辩事由。     

我国高校趋同化现象的理论解释——新制度主义的视角

在我国高等教育大众化进程中,出现了较严重的高校趋同化现象。虽然目前对这种趋同化现象所带来的后果还不能作出最终判决,但作为一种已经出现并在不断强化着的现象,则需要我们从理论上作出解释。组织社会学的新制度主义认为,在不确定的环境中,组织为了生存和发展,其外部形态、内部结构、运行模式等会在环境的逼迫和诱导下走向趋同,这是组织追求合法性的表现。我国高等教育大众化阶段出现的高校趋同化现象,正是高校在竞争激烈、环境不确定的情况下寻求合法性的本能反应。深刻认识和正确分析高校这种趋同性,对优化高等教育生态环境具有重要意义。     

Allocating responsibility among controllers,processors, and “everything in between”: the definition of actors and roles in Directive 95/46/EC

In Opinion 1/2010, the Article 29 Data Protection Working Party has provided additional guidance concerning the concepts of ‘controller’ and ‘processor’ contained in Directive 95/46/EC. This guidance aims to assist practitioners in their determination of whether an entity is acting as a controller or as a processor towards a particular data processing operation. Despite the fact that this opinion is informative, the existing framework still appears to leave room for a considerable amount of legal uncertainty. This uncertainty is attributable in part to the nature of the existing concepts, but also (and perhaps to a larger extent) to their apparent misalignment with current processing realities. In this paper, the author seeks to articulate why the existing concepts often remain difficult to apply in practice, in order to enable a constructive reflection on how these issues might be addressed in the future.     

Delivering effective therapeutic interventions for men with severe personality disorder within a high secure prison

Abstract

The Fens Unit is a government-initiated facility for male prisoners reaching criteria for Dangerous and Severe Personality Disorder (DSPD). Prisoners are assessed using a standardised process; those meeting criteria engage in a five-year treatment programme using a cognitive interpersonal model. Personality disorder is seen as a combination of coping strategies, developed in response to experience, which results in dysfunctions of thinking, feeling, behaviour and interpersonal relationships. These dysfunctions are linked to offending. Therefore, in order to reduce risk, multiphasic interventions – individual and group therapies – specifically target each dysfunction area, focusing on the developmental experiences that generated them. Each man's individual risk factors become treatment targets that are addressed in every aspect of the programme. All staff on the unit, clinical and operational, attempt to improve the quality of interpersonal relationships the prisoner has access to in order to create remedial experiences that are necessary to attain the capacity to develop socially adaptive cognitive, emotional and behavioural responses. This paper describes the treatment provided to these prisoners and the outcomes for the first cohort to have completed treatment (n=18). Results indicate that there is a reduction in violent behaviour, a higher than expected attendance at therapy, a decrease in actuarial risk measures and the majority of men are successfully managed in lower security after programme completion.     

CRIME,FEAR, AND MENTAL HEALTH IN MEXICO

This article examines the effect of exposure to criminal violence on fear of crime and mental health in Mexico, a country that has experienced a dramatic rise in violent events resulting from the operation of drug trafficking organizations (DTOs). Data are drawn from more than 30,000 respondents to a national longitudinal survey of Mexican households. We use fixed‐effects models which allow us to control for time‐invariant individual and municipal characteristics affecting both exposure to violence and mental health. The results indicate a substantial increase in fear and psychological distress for individuals living in communities that suffered a rise in the local homicide rate even when exposure to other forms of victimization and more personal experiences with crime are taken into account. Because DTO killings occur in response to factors external to a specific neighborhood, they generate fear and psychological distress at a larger geographical scale. They also seem to create a generalized sense of insecurity, leading to increased fear of other types of crimes. We examine the effect of large surges in homicide and the presence of military and paramilitary groups combatting DTOs as these conditions may approximate those in conflict zones elsewhere in the world. We also explore differences in the relative sensitivity to homicide rates between sociodemographic groups.     

Sketching and validating the location-based services (LBS) regulatory framework in Australia

Location-based services (LBS) are defined as those applications that combine the location of a mobile device associated with a given entity (individual or object) together with contextual information to offer a value-added service. LBS solutions are being deployed globally, and in some markets like Australia, without appropriate regulatory provisions in place. Recent debates in Australia have addressed the need to bridge the gap between technological developments and legal/regulatory provisions. This requires an assessment of the regulatory environment within a given social context such as Australia. The core components of such an investigation include: (a) composing a conceptual framework for analysing regulation of technologies such as LBS, one that is sensitive to public policy themes and challenges, and (b) applying this conceptual framework to the Australian setting in order to sketch and define the components of the present framework, and identify areas for improvement through a process of validation. This paper addresses these aims, demonstrating how the current regulatory framework in Australia is bound by legislation with respect to privacy, telecommunications, surveillance, and national security (that is, anti-terrorism), in addition to a set of industry guidelines for location-service providers (LSPs). The existing Australian framework, however, is lacking in its coverage and treatment of LBS and location data, and does not adequately address the themes and challenges in the defined conceptual framework.     

Projectile Wound to Head from Modified Electronic Cigarette Explosion

One of the dangers of a rapidly growing technology industry is the risk involved in being intimately close to lithium-ion batteries. When exposed to improper conditions, lithium-ion batteries in a variety of devices have been reported to ignite and, in some cases, explode. With the rise of electronic cigarette use and modifications, the lithium-ion batteries in these devices are subject to a higher risk of malfunction. This is a retrograde analysis of a 38-year-old man who experienced fatal penetrating head trauma while using a modified electronic cigarette device. The findings suggest that the trauma from the explosion was caused by the thermal runaway of the lithium-ion battery in the modified e-cigarette.     

Tarasoff in Missouri: The jurisprudence of a mental health provider's duty to warn and protect non-patients of potential risks from patients

In 1976, the Supreme Court of California issued its well-known Tarasoff Principle. From this principle, other courts found a duty to warn, and some found more than just a duty to warn, a duty to protect. As courts in other states adopted a version of the Tarasoff Principle, they issued a wide variety of third-party liability rules. In light of the dynamic, everchanging Tarasoff jurisprudence in the United States and recent relevant appellate court opinion in Missouri, a timely updated summary and update of Tarasoff-related jurisprudence in Missouri is warranted. In the present analysis, we compiled the four appellate court decisions that pertained to the questions of Tarasoff-like third-party liability in the State of Missouri: Sherrill v. Wilson (1983), Matt v. Burrell (1995), Bradley v. Ray (1995), and Virgin v. Hopewell (2001). We reviewed all legal measures for clinicians to protect nonpatients in Missouri, not just those that relate to protecting nonpatients from violence as in a Tarasof-like scenario. Thus, this paper concisely provides a compendium of such options and allows for a meaningful comparison of which legal, protective measures are mandatory and which are permissive, thereby evoking the question of whether measures of protecting nonpatients from a patient's violent acts ought to be mandatory duties or permissive application of professional judgment.     

In need of a cultural shift to promote restorative justice in Southern Europe

The article describes the main results of a European project on restorative justice (RJ) called Freedom Wings (FW) and presents a new model to promote RJ in Southern Europe, which was developed from FW findings. The principal mission of the FW project is to disseminate best practices of RJ within a transnational network and to promote community participation in conflict prevention and resolution, in order to support individual and social well-being. This paper presents the main findings of multiagency and professional focus groups exploring restorative approaches and community justice. Observation of experts’ social representation of RJ helped the authors to understand the operation of the justice systems in each country and the attitudes of senior officials towards implementing restorative practices in a way that actively involves the community. The analysis shows the necessity of a cultural change in order to switch from a form of RJ managed by the judicial system to one led by the community. The EU project enabled the research team to theorize a model for promoting a relational and restorative community.