法律判断大小前提的建构及其方法

法律方法效命于法律判断的形成,法律判断的形成是一个将大小前提进行等置的过程。在这个过程中,视事实与规范之间的不同关系,要运用各种方法去建构大小前提,即使事实一般化、使规范具体化。这些方法包括:客观目的探究,法律修正、正当违背法律,法律补充、反向推论等建构大前提的特有方法;观察、实验、技术鉴定、法医鉴定等建构小前提的特有方法;以及演绎、归纳、设证、类比、解释、论证、诠释等建构大小前提共同运用的方法。它们共同构成法律方法的体系。     

Islamic Law,Women's Rights,and Popular Legal Consciousness in Malaysia

Drawing on original survey research, this study examines how lay Muslims in Malaysia understand foundational concepts in Islamic law. The survey finds a substantial disjuncture between popular legal consciousness and core epistemological commitments in Islamic legal theory. In its classic form, Islamic legal theory was marked by its commitment to pluralism and the centrality of human agency in Islamic jurisprudence. Yet in contemporary Malaysia, lay Muslims tend to understand Islamic law as being purely divine, with a single “correct” answer to any given question. The practical implications of these findings are demonstrated through examples of efforts by women's rights activists to reform family law provisions in Malaysia. The examples illustrate how popular misconceptions of Islamic law hinder the efforts of those working to reform family law codes while strengthening the hand of conservative actors wishing to maintain the status quo.     

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.     

Stop,Collaborate, and Listen: Women's Collaboration in US State Legislatures

Collaboration plays a key role in crafting good public policy. We use a novel data set of over 140,000 pieces of legislation considered in US state legislatures in 2015 to examine the factors associated with women's collaboration with each other. We articulate a theory that women's collaboration arises from opportunity structures, dictated by an interaction of individual and institutional characteristics. Examining the effect of a combination of characteristics, we find support for an interactive view of institutions, where women's caucuses accelerate collaboration in Democratic‐controlled bodies and as the share of women increases. Collaboration between women also continues in the face of increased polarization in the presence of a caucus, but not absent one. Our findings speak to the long‐term consequences of electing women to political office, the importance of institutions and organizations in shaping legislative behavior, and the institutionalization of gender in politics.     

两岸罪赃移交司法互助中的困境与对策

海协会和海基会签署了《海峡两岸共同打击犯罪及司法互助协议》后,两岸在司法互助领域呈现友好态势,中国区际司法互助的“一国三区四法域”政治,法律特殊的背景下,“罪赃移交”司法协助的矛盾日益显现,两岸的不同规定给罪赃移交设置了法律适用和现实操作的障碍,可移交罪赃的不确定性,罪赃移交是否可以适用国际罪赃返还的原则仍处于争议之中,程序的复杂性导致实际协作存在困难。对于两岸罪赃移交存在的困难,可以通过明确可移交罪赃的范围,国际罪赃返还的分享原则可适用性,以及对程序性操作进行细化,加强两岸司法领域的交流与合作。     

Trends in Women's Gun Ownership, 1973–2002

In recent years controversy has arisen over whether the rate of women's gun ownership has increased over time. While media reports claimed a rising trend in women's gun ownership, existing scholarly studies found stable rates over time. This paper investigates the issue using the 1973–2002 General Social Survey data. Our bivariate analysis reveals a declining trend in female gun ownership, especially in recent years. The logistic regression results indicate that holding relevant variables constant, the probability of female gun ownership decreases over time. Comparisons are also made with men. Similar results for male gun ownership are obtained. Possible explanations and implications of findings are discussed.     

Minor corrections, clarifying changes, and a minor policy change--NRC. Final rule

The Nuclear Regulatory Commission is amending its regulations to make minor corrections and clarifying changes to the NRC's 10 CFR Part 20, "Standards for Protection Against Radiation." The final rule is also intended to conform other regulations with the Commission's 1991 revised radiation protection requirements. In addition, the final rule includes a minor policy change that raises the monitoring criteria for minors from 0.05 rem (0.5 mSv) to 0.1 rem (1 mSv) in a year and for declared pregnant women from 0.05 rem (0.5 mSv) to 0.1 rem (1 mSv) during their pregnancies. The 0.1 rem (1 mSv) in a year deep dose equivalent monitoring criterion is consistent with the public dose limit and represents a quantity more consistent with the measurement sensitivity of individual personnel dosimetry. Licensees are still required to ensure that the occupational dose limit of 0.5 rem (5 mSv) in a year is not exceeded for minors, that the dose limit of 0.5 rem (5 mSv) to an embryo/fetus due to occupational exposure of a declared pregnant woman is not exceeded during the course of the pregnancy, and that sufficient effort is made to ensure that substantial variations above a uniform monthly exposure rate for a declared pregnant woman are avoided. These changes to the threshold for monitoring exposures to radiation and radioactive material to demonstrate compliance with the limits do not change the occupational dose limits for minors or declared pregnant workers.     

Flag desecration in American culture: Offenses against civil religion and a consecrated symbol of nationalism

Adoration for the United States flag is emblematic of American nationalism and patriotism. Moreover, in extreme forms, its rigid orthodoxy also reflects civil religion — a non-sectarian faith in which secular objects are transformed into sacred icons. Ostensibly, elements of civil religion imbue reverence for the flag, and although the recent flag protection campaign has caught the attention of intellectuals from various academic disciplines, sociologists are conspicuously absent from such discourse. In light of its relevance to civil religion, the dearth of sociological analysis on flag desecration is especially disconcerting. This article offers several theoretical explanations for the social construction of flag desecration and its sociological significance to civil religion.     

If i Go There Will Be Trouble,If i Stay There Will Be Double: Revenge Porn,Domestic Violence,and Family Offenses

New York State's current lack of legislation criminalizing the threat of revenge porn allows repetitive, invasive, and embarrassing attacks on the morality and sexuality of victims. This can have a severe impact on survivors of domestic violence who are prevented from leaving dangerous situations by threats of dissemination. Victims of revenge porn and domestic violence often face isolation, threats of violence, and thoughts of suicide. This Note proposes that threats of revenge porn become family offenses under the New York Family Court Act § 812.     

Strength of Evidence,Extraevidentiary Influence,and the Liberation Hypothesis: Data from the Field

To examine relationships between strength of evidence (SOE) and extraevidentiary variables in the context of Kalven and Zeisel’s (The American Jury, 1966) liberation hypothesis, post-trial questionnaire data were collected from judges, attorneys, and jurors associated with 179 criminal jury trials. SOE ratings were strongly correlated with jury verdicts on the three most serious charges against the defendant, and several extraevidentiary variables (i.e., pretrial publicity, trial complexity, charge severity, and foreperson demographics) were moderately correlated with verdicts. Extraevidentiary-verdict relationships remained significant when SOE was controlled, although extraevidentiary variables yielded only modest improvement in classification accuracy beyond SOE. In partial support of the liberation hypothesis, several case-related extraevidentiary variables were significantly related to jury verdicts only when the prosecution’s evidence was rated as moderately strong.     

Women's status and fertility in rural India

This article examines the relationship between women's status and fertility in India in the current (third) phase of the Indian fertility transition that began in the period 1900–1920. Variables used in the study include caste, occupation, and education of husband and wife, educational status of the household, role of female in the society, autonomy in decision-making, and interaction with and exposure to mass media. Women's status is conceptualized at the micro-level using the household as a unit; and the macro-level using society as a unit. Given the low levels of female literacy and participation in salaried employment, variables such as caste, education, and occupation of husband have been included in the computation of women's status. The variables, age-specific fertility rate, fecundity, and the number of children ever born, have been used as measures of fertility. Among other findings, the study reveals that there is a difference of approximately two births in the total fertility rate between low status and high status groups of women, and that there is an inverse relationship between the autonomy in decision-making and the level of fertility.     

Women's status and fertility in rural India

This article examines the relationship between women's status and fertility in India in the current (third) phase of the Indian fertility transition that began in the period 1900–1920. Variables used in the study include caste, occupation, and education of husband and wife, educational status of the household, role of female in the society, autonomy in decision-making, and interaction with and exposure to mass media. Women's status is conceptualized at the micro-level using the household as a unit; and the macro-level using society as a unit. Given the low levels of female literacy and participation in salaried employment, variables such as caste, education, and occupation of husband have been included in the computation of women's status. The variables, age-specific fertility rate, fecundity, and the number of children ever born, have been used as measures of fertility. Among other findings, the study reveals that there is a difference of approximately two births in the total fertility rate between low status and high status groups of women, and that there is an inverse relationship between the autonomy in decision-making and the level of fertility.     

Women's criminality,criminal women,criminalized women? Questions in and for a feminist perspective

Although the notion of taking gender into account in social analyses has been around for some time, for the large partit has not been taken seriously by criminologists. In this article, Laberge shows how the neglect of women's criminality has been to the detriment of criminological inquiry. Through an examination of the questions usually asked about women in contact with the penal system, the author takes us beyond an ‘additive’ approach to explaining crime. Reorganizing these questions, she outlines a number of analytical distinctions that will transform our understanding of criminalized women, specifically, and criminological inquiry, generally.     

The Intersection of Crime Seriousness,Discretion, and Race: A Test of the Liberation Hypothesis

Spohn and Cederblom’s interpretation of the liberation hypothesis asserts that with trivial crimes, judges are “liberated” to consider extra-legal attributes such as race when making sentencing decisions. The current study posits that this perspective may be too theoretically simplistic because it fails to distinguish between the concepts of discretion and uncertainty. In light of this argument, we examine the sentencing decisions of felony cases in the Florida circuit courts. Results indicate that blacks and Hispanics are more likely to be imprisoned than whites, and males more so than females. Contrary to expectations, this disparity increases with crime seriousness. Consistent with the imprisonment model, blacks and males receive longer sentences and the effect increases with case seriousness. We found no evidence that the effect of offender extra-legal attributes depends upon the characteristics of the judges handling the cases. Suggestions for future research and implications for the liberation hypothesis are discussed.     

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes'restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.     

Incarcerated Mothers of Minor Children: Physical Health,Substance Use,and Mental Health Needs

Mothers of minor children serving sentences in a large Midwestern jail were screened for potential substance use problems and asked to report their physical and mental health status and treatment experiences. Of mothers screened for substance use problems, 72.1% had positive findings on the AUDIT-12, 56.7% reported at least one serious physical health problem, and 67.1% had received mental health treatment. More than two-thirds (68.8%) of the 240 mothers reported a co-occurring condition, and a third (33.8%) reported problems in all three spheres (substance use, mental health, and physical health). The relationship among the three health-related problems is examined as well as the characteristics of mothers related to having co-occurring health conditions. Given that the overwhelming majority of mothers reported more than one health-related problem, the changes to policy and practice need to avoid simplistic solutions.     

Gender,Indigeneity, and the Criminal Courts: A Narrative Exploration of Women's Sentencing in Western Australia

Ethel Rosenberg's prison letters illustrate women's prison writing at a transitional point. Preceding her work are prison writings that focus on self-justification and autobiography; afterward come texts that assert the writer's pride and challenge the penal system and society. Rosenberg's correspondence includes elements of both traditional and contemporary women's prison literature. Along traditional lines, her letters focus on family matters and her own mental state as she attempts to adapt to imprisonment. In their outright assertions of pride in self and anger at perceived injustice, Rosenberg's letters point ahead to the writing of women inmates today.