General courts,specialized courts,and the complementarity effect

Among the major decisions any legal system must make is deciding whether to establish general courts with broad jurisdiction, or specialized courts with limited jurisdiction. Under one influential argument—advanced by both judges and legal theorists—general courts foster coherence within the legal system. This Article identifies a distinct effect of establishing general courts: the “complementarity effect.” In the case of complementarity, general courts strategically apply different principles in different fields, such that litigants losing in one sphere (e.g., public law) are compensated in another (e.g., private law). We support this conjecture by analyzing three case studies.     

Judicial Self-Governance Index: Towards better understanding of the role of judges in governing the judiciary

The aim of this article is to introduce a novel view on how to evaluate the share of power held by judges in judicial governance. Its contribution to court administration and the regulation of judges is three-fold. First, it provides a novel empirically tested conceptualization of judicial governance that includes 60 competences grouped into eight dimensions (ranging from selection and education of judges to case allocation and publication of judicial decisions). Second, it proposes a new Judicial Self-Governance (JSG) Index that measures how much power domestic judges hold in these eight dimensions of judicial governance. Third, by applying the JSG Index to the longitudinal data for Germany, Italy, Czechia, and Slovakia this article demonstrates that the Judicial Council model is not the only institutional model of judicial governance leading to the empowerment of judges. This means that judges can hold many powers without the existence of judicial councils and even in the Ministry of Justice model.     

COMMENTARY ON "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:"

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.     

论法院有限变更指控罪名

从罪名的含义 ,从法院拥有审判权、定罪权及法院在审判程序中的中心地位 ,以及诉审分离原则、辩论原则和辩护原则的施行 ,阐明法院变更指控罪名的合理性及其受制于正当程序的有限性。     

Influence of WTO decisions on international intellectual property

Legal context: The task of harmonization in the IP framework is currently atrisk. This conclusion is shown by the way EU Member States have recentlyenacted Directive 2001/29 on the harmonization of certain aspectsof copyright and related rights on the information society.Particularly, no Member State seems to have considered the interpretationof the three-step test of the Berne Convention given in 2000by the WTO panel, notwithstanding its importance. Moreover, three recent opinions of the French Cour de Cassation,the French Conseil Constitutionnel, and the German Federal Courtof Justice appear not to have endorsed the WTO's interpretationof the three-step test. This scenario confirms the impressionthat the international framework is devoid of any degree ofharmonization. Key points: Although the aims of certainty and predictability in the internationaltrading system are among its main tasks, the World Trade Organizationhas not yet tackled the plight of harmonization, preferringa political approach to smooth conflicts and disputes. Yet,the World Trade Organization has recently taken important stepsthat seem to herald a new attitude. In United States—Sections301-310 of the Trade Act of 1974, the World Trade Organizationdismissed the traditional deference towards national legislations.In addition, at international and national levels, the AlleghenyLudlum and Softwood Lumber cases aligned their interpretationsto that of the World Trade Organization.     

我国区际法院判决承认与执行制度之比较

近年来，我国在区际法院判决相互承认与执行方面取得了进展，先后生效的几个区际司法协助规定与安排的达成无疑将有助于进一步推动我国区际法院判决相互承认与执行的开展。但是，这仅仅是一种权宜之计或是一种带有过渡性质的“半成品”，而较为理想的模式应是进一步制定一部统一适用于大陆与港澳台地区的判决承认与执行的专门立法。     

中国法院绩效考评制度研究——“同构性”和“双轨制”的逻辑及其问题

从几个法院绩效考评制度的样本出发,总结出中国法院系统绩效考评制度数目字管理、各级法院考评同构性和同一法院考评双轨制等特点。不仅展示当前法院绩效考评制度的现实合理性和政治正当性;更借助司法理论、信息经济学和激励理论,论证绩效考评的双轨制抑制司法比较制度能力的有效发挥和架空法院独立行使审判权的制度基础。由于法官自由裁量权的存在,无视初审和上诉审职能分工和审级差异的绩效考评同构性和数字化管理更使得一套量化的考评指标不仅无法有效测度法官工作的努力度和廉洁度,更在很大程度上有损审判独立、程序价值等法治原则。     

Restrictions on legal aid in family law cases in England and Wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) resulted in significant cuts to the availability and scope of legal aid in family law proceedings. Some four years after the cuts were implemented, there has been a great deal of research about their devastating impact on vulnerable groups and individuals. This paper considers the other victim of the cuts, the family court itself. It is currently bulging under pressure from both an increase in applicants who have been forced to represent themselves in family proceedings and also from a rise in applications for injunctions linked to domestic violence. This paper will draw on case law to demonstrate that the reforms implemented through LASPO have seemingly only succeeded in passing the burden from one publicly funded agency, the Legal Aid Agency, to another, HM Courts and Tribunals Service. The family court system is currently at breaking point and further government review is urgently needed if people are going to be able to continue to use the system effectively.     

Mental illness in the eyes of the law: examining perceptions of stigma among judges and attorneys

In response to the increasing numbers of mentally ill persons placed under the care of correctional institutions, community-based diversion programs have been established to address the unique needs and challenges of this vulnerable population. Given that legal personnel may serve as gatekeepers in placement decisions, and the lack of existing research examining their attitudes toward offenders with mental illness, the present study aimed to evaluate perceptions of dangerousness and treatment need among a sample of judges, prosecutors, and public defenders across the state of Mississippi. While controlling for age, results of a factorial MANCOVA revealed that public defenders, relative to both judges and prosecutors, endorsed more compassionate attitudes about defendants with mental illnesses. Furthermore, political ideology did not significantly influence attitudes toward mentally ill offenders. While judges and prosecutors endorsed more negative stereotypes about mental illness and perceived mentally ill defendants as a greater risk to the community, mean scores across groups suggested moderately positive attitudes overall. Study limitations, implications for correctional mental health providers, and directions for future research are discussed.