Gault's Promise Revisited: The Search For Due Process

Fifty years ago, due process was introduced into the juvenile courts, but today children still do not have the guiding hand of counsel at every stage of the proceedings. In assessing the pre‐Gault world, Chief Justice Fortas observed that “[a] child receives the worst of both worlds:…he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 1 Fortas opined that “Then as now good will and compassion were admirably prevalent. But recent studies have entered with surprising unanimity, sharp dissent to the vitality of this gentle conception. They suggest that the appearance as well as the actuality of fairness‐ impartiality and orderliness‐ in short the essentials of due process may be a more therapeutic attitude so far as the juvenile is concerned.” 2 The prescience of his observation has found resonance and reinforcement with the 2013 publication of Reforming Juvenile Justice: A Developmental Approach 3 which was commissioned by the Office of Juvenile Justice Delinquency and Prevention (OJJDP). Reforming Juvenile Justice's emphasis on encouraging not only the perception but the actuality of fairness in all domains 4 connects directly to the essence of Gault's message. “Treating youth fairly and ensuring that they perceive that have been treated fairly and with dignity contribute to positive outcomes in the normal processes of social learning, moral development, and legal socialization adolescence.” 5 The research also demonstrates that public health oriented alternatives to traditional court processing promote social connection and positive youth development. 6 The OJJDP report provides a road map for promoting positive youth development and social engagement by demonstrating that supporting such policies improves public safety outcomes by reducing recidivism. In exploring whether Gault's promise of due process has been realized or is still aspirational, this article suggests that our inquiry requires us to think contextually by considering how children and families are treated in and out of the courtroom. This entails consideration of educational, child welfare and mental health services, as well as the scope of legal entitlements. Equity and fundamental fairness, euphemisms for due process, are what will truly effectuate Gault's promise and should be the benchmark for all courts and systems that engage with children.     

Pat‐Downs But No Hugs: Why Prison Visitation Protocol Should be Changed to Help Keep Familial Structures Intact

In the United States there are almost three million children who have one or both parents incarcerated. Parental incarceration negatively impacts children in several ways. Visitation protocol varies across facilities nationwide with no modification in protocol for minors. Parental rights are disrupted by visitation protocol because of cost‐prohibitive access and extreme security measures. This Note proposes a model statute that would change visitation protocol to facilitate a clear‐cut set of visitation processes that are tailored to ensure prison safety while also fostering and maintaining a positive relationship between a minor child and his/her incarcerated parent.     

关于选择行政诉讼的审查形式：完全审查的思考

我国学者和实务界对行政诉讼审查形式的选择,存在争论。从历史和比较的角度分析,从行政诉讼实践的需要来看,我国应该选择既有法律审查又有事实审查的完全审查模式。这不但符合行政诉讼实践的需要,也有利于实现行政诉讼的目标。     

论跨国公司母公司对子公司的法律责任

随着经济全球化进程的加快,跨国公司在国际经济活动中扮演了越来越重要的角色。但是由于相关理论与立法的滞后,跨国公司在实践中产生了很多问题,母公司与子公司的责任关系就是其中之一。我国应借鉴美国、德国的做法,将“揭开公司的面纱”理论引入立法实践,建立具有中国特色的追究跨国公司母公司法律责任的法律制度体系。     

The Application of the Polyvagal Theory to High Conflict Co‐Parenting Cases

Families, litigants, lawyers, advisors embroiled in cases of complex divorce with child contact issues, manage many stressors at once. Participants involved with these types of cases are often exhausted and burned‐out from the long‐term battles of prolonged litigation. The inability to problem‐solve or even communicate effectively reflects the chaos and traumatic stress of the experience and can be seen as a hallmark of this population. When people are consistently stressed, there is a breakdown of communication skills that can create an immunity to receiving help from any direction. Often all parties involved appear to be both hyper‐alert to potential threat, and hyper‐reactive to one another: no one feels safe. Stephen Porges' Polyvagal Theory is premised on the idea that neuroception plays a key role in the nervous system's ability to assess danger in the environment. Neuroception is a neurophysiological response that does not involve cognitive processing. When cognitive processing is not involved, the result may lead to misinterpretation of, and an inability to accurately assess situations: executive functioning including rational thinking and communication skills are lost to physiological response. Rather than evaluating families and individuals involved in the aforementioned complex divorce cases through the lens of pathology, Polyvagal Theory explains their behavior as an adaptive stress reaction. Utilizing Polyvagal Theory offers a promising path to treatment with these families and diminishing the poor communication and the heightened emotion, assisting practitioners in understanding the impact of neurobiological response in managing stress and trauma. Applying Polyvagal Theory to court involved populations can help both litigants and practitioners recognize the role of the autonomic nervous system, providing the opportunity to understand, to self‐regulate, and to improve communication and decision making.     

婚生否认之诉原告资格的立法完善和规范适用

对于婚生否认之诉的原告,目前我国法采取了明确列举的方式,所规定的原告范围较窄。当其他可能的原告起诉时,法院或严格适用法律规范,或扩大原告范围,产生了矛盾裁判。立法应当对能够成立诉权并启动司法审判的适格原告作出周全选择和判断。基于身份权的专属性及国家意欲保护的权利和价值,亲子关系的主体,即父母、子女均有婚生否认之诉原告资格;生父仅在婚生亲子关系不利于子女最佳利益或损害公共利益时,才附条件地具有婚生否认之诉原告资格;父死亡后的继承人因无专属身份关系以及身份公益优位于财产私益的法理,不具有婚生否认之诉原告资格。在立法作出周全选择后,司法实践应当准确把握婚生否认之诉属于形成之诉的本质及立法的文义和目的,遵循形成之诉原告的法定性和封闭性,不得扩大原告范围。     

安乐死的刑事理性问题

在争取安乐死权利运动的推动下,安乐死逐渐获得社会与法律的宽容与认可,并且逐渐获得其相应的法律地位。安乐死有其正当性,但当前尚不具备合法化的现实条件。在此情况下,可以基于刑事理性的科学论证,提出事实上的非犯罪化观点及具体措施。     

法典化理念与特别法发展之间的行政程序法

1976年颁布的德国《联邦行政程序法》正处于时代的转捩点上。德国的行政程序法是由总则性法典、部门(领域)法典和特别法以阶层模式构成的体系。法典化理念在立法现实中是动态的和周期性的,立法史随着法典化理念波动,其是以法典化、解法典化和再法典化为轴心的辩证发展过程。法典具有法的统一化、定向和稳定化、精简规范等功能,但同时其自身也具有割裂风险、过时风险、固化风险等弱点。近年来,德国的行政程序法出现了解法典化的趋势,包括水平的解法典化和垂直的解法典化。德国联邦行政程序法在再法典化的过程中,需要再次反思一般行政(程序)法的秩序理念与结构化能力。     

朱德参与领导南昌起义和缔造人民军队的卓越贡献

南昌起义是中国共产党缔造人民军队的起点。朱德作为中国人民解放军的主要缔造者之一,他参与并领导了南昌起义,在南昌起义军余部面临绝境的关键时刻,勇担保存新生人民军队革命火种的重任。在转战上井冈山之前,他致力整顿思想,培养新生人民军队坚定的革命意志;建立新的军事指挥制度,加强党对新生人民军队的直接指挥;制定铁的纪律,转变作战形式,提高新生人民军队的生存和发展能力。最后,朱德带领万余人的革命武装上井冈山,与毛泽东领导的秋收起义部队会师,组成名扬天下的“朱毛红军”。     

The Interplay of Early Adolescents’ Depressive Symptoms,Aggression and Perceived Parental Rejection: A Four-Year Community Study

This study of early adolescents from the general population examined the direction of effects adolescents’ depressive symptoms, aggression, and perceived parental rejection have on one another in a longitudinal study. Over a four-year period, data were collected yearly from 940 early adolescents (50.6% boys and 49.4% girls) who completed self-report questionnaires of depressive symptoms, aggressive behaviors, and perceived parental rejection. The longitudinal relationships of adolescent reported depressive symptoms, aggression, and perceived parental rejection were tested in multi-group structural equation models. The findings of this study demonstrate that adolescents’ depressive symptoms, aggression, and perceived parental rejection can be viewed as two unidirectional effects models that work in tandem: adolescents’ depressive symptoms longitudinally predicting perceived parental rejection and, in turn, perceived parental rejection longitudinally predicting adolescents’ aggression. Additionally, the strength of these effects diminished as the adolescents grew older and the effects were similar for both adolescent boys and girls.