Re-examining Children's Consent to Medical Treatment

The question of consent to the medical treatment of children is looked at across the four disciplines of law, medicine, psychology and philosophy. The conclusion is reached that while there is a remarkable consensus on the issues considered to be important, none of the disciplines provides a complete answer to the problems involved. As an experiment, reference is made throughout the article to various literary conceptions of childhood. It is hoped that some of these may give cause for thought about how children are treated by the professions. The article was prepared for publication before release of the judgements of the High Court in Re Marion in May 1992 (renamed Secretary, Department of Health and Community Services v JWB and SMB on appeal). In the appeal a majority of the High Court followed the Full Court of the Family Court in Re Marion and confirmed that judicial consent is required for the medical treatment of children in some cases. The notion of treatment being therapeutic or non-therapeutic was not accepted, the majority preferring to rest judgement on assessments of the risks and gravity of consequences of a wrong decision (JWB and SMB 79,180 and 79,206–7). There are many other points of interest discussed by the High Court, for example, Brennan J's comments on the absurdities of the concept of substituted consent (79,196–7), Deane J's acceptance that the issues involved were moral and social and therefore beyond legal competence (79,208) and McHugh J's understanding of the sources of the parental power to consent (79,214). Although adding authority to some of the views expressed in the Full Court of the Family Court, the judgements of the High Court do not dispose of debate on the issues raised in the article.     

论地图在国际法院解决领土争端中的证明价值——析地图证据之于钓鱼岛列岛争端

通常,国际法院在解决领土争端的过程中,仅将地图和其他图表资料作为补强证据,并不视为一国取得领土主权的权原.但是,如果地图成为解决领土边界条约不可分割的一部分,或者对另一方产生承认、默认或禁止反言之效果,充分体现当事国之间确定的意图,那么对争议领土的主权归属的判定则具有不可反驳的推定作用,等同于法律权利.而且,与私人绘制的地图相比,一般来源于官方、相反利益方、第三方以及中立机构的地图证明价值较大.根据国际法院适用的证据分量大小比较规则,通过对中国、日本和第三方绘制的早期地图证明价值的分析,我国对钓鱼岛列岛享有无可辩驳的历史主权.     

"We just happen to live here": two social workers share their stories about Oregon's Death with Dignity Law

This article is written more like a conversation with the reader rather than a strictly academic piece. The purpose is to share from a more personal perspective the unique circumstances and challenges faced by two social workers in Oregon as they grappled with the Death with Dignity Law. The law has been in effect for six years and a May 2004 decision from the Ninth U.S. Circuit Court allowed the law to remain a legal end-of-life option. Each writer has a unique voice on the process of social work involvement in practice, research, and policy since the law was originally passed in 1994.     

“We Just Happen to Live Here”

Abstract

This article is written more like a conversation with the reader rather than a strictly academic piece. The purpose is to share from a more personal perspective the unique circumstances and challenges faced by two social workers in Oregon as they grappled with the Death with Dignity Law. The law has been in effect for six years and a May 2004 decision from the Ninth U.S. Circuit Court allowed the law to remain a legal end-of-life option. Each writer has a unique voice on the process of social work involvement in practice, research, and policy since the law was originally passed in 1994.     

State Policies as a Source of Civil Law*

State policies exert a great influence over Chinese civil justice. Article 6 of the General Principles of Civil Law stipulates that state policies are a source of civil law, but the path by which they enter civil justice is not a rational one and may lead to adjudication difficulties with state policies. State policies are integrated with state law, and the laws and legal interpretations formulated by the National People’s Congress and its Standing Committee, judicial interpretations, administrative regulations, autonomous regulations and special regulations, administrative rules and other regulatory documents are forms of expression of state policies. Different rules for adjudication apply depending on the different vehicles of state policy. The Supreme People’s Court can play a role in making public policy and guiding state policy into civil adjudication through “open” and “unseen” channels.     

Prosecuting the prosecutor: The makings of the Michael Morton Act

Prosecutorial misconduct is not a rare event, but it often goes undetected, unreported, or no action is taken by the criminal justice system. However, when one Texas prosecutor, Ken Anderson, served jail time for wrongfully prosecuting an innocent man, Michael Morton, for murdering his wife, he made history. Anderson withheld exculpatory evidence leading to Morton wrongfully serving 25 years before being released with new DNA evidence. However, Anderson only served a five-day sentence and $500 fine. We discuss the case in the context of inequality and legal realism in the criminal justice system. Also, we look at the implications and new legal action taken by the state of Texas to try and combat this problem, along with looking at these secretive occupational subcultures.     

‘Boy, 15, Divorces Parent’: Irreconcilable Difference Applications in Victoria

The provision in Victoria's child welfare legislation, which allows parents or children to apply to the Children's Court on the ground of irreconcilable differences, is examined in the light of a much publicized case in Melbourne. Similar legislation exists elsewhere in Australia, and in New Zealand. The number of irreconcilable difference applications has declined in recent years due to the provision of counselling. A few cases still reach court. It is argued that legal proceedings serve little useful function. Cases of family breakdown are better handled by the provision of services including alternative accommodation, without a change in the child's legal status.     

Reform for Australian Family Law

This article examines the Commonwealth Family Law Amendment Bill 1981 and considers the extent to which some of the proposed reforms will affect family law in Australia. The article analyses existing jurisdictional and procedural limitations of the Family Court originating from the High Court decision in Russell v Russell (1976). It is argued that most of the proposed reforms contained in the Bill are welcome and should improve the financial and psychological position of spouses and children who are subject to the trauma of marital breakdown.     

“甩干”机制：中国乡村司法的运行逻辑

由于中国乡村社会在日常生活中充满了诸多伦理性、道德性的内容,致使司法体制与乡村现实之间存在着深深的抵牾。本文借由一起诉讼揭示了乡村司法的运行逻辑--“甩干”机制。基层法院在处理案件时会按照形式理性的要求,以洁净化、纯粹化为目标,甩掉道德、习惯等诸多非法律的元素,实现对案件事实的重新建构,以一种生硬、执拗的方式对案件进行权威性的裁决。“甩干”机制源自民事诉讼程序中关于案件“受理”与“审理”的特殊制度设计,同时也是基于法律形式化要求的无奈之举,更在某种程度上体现了中国式司法的“无知之幕”特色。“甩干”机制揭示了乡村社会中法律的实际运行状态及内在张力。     

公正观念的民间认同:“叶玉珍”财产继承案分析

在法律秩序达成官方和民间（国家和社会）两个面向的分析框架下,黄宗智和张静分别从“实践”和“利益分配”的角度提出民间面向上存在的两种解释维度。本文从“叶玉珍”财产继承案出发,着重探讨公正观念的民间认同,认为在抽象原则上,官方和民间都认同“权利和义务一致”的公正观念,但在义务的具体内容上,存在个人义务与家族义务的认同冲突。由此,本文回溯历史,梳理明清以来寡妇财产继承权的变迁,进一步揭示其中所反映的公正观念在官方和民间认同上的一致与冲突,提出在民间这一面向上,“公正观念的民间认同”是以往未注意到的另一解释维度,从而试图对法律秩序的达成加入新的解释维度。     

"In My Opinion . . .": Justices' Opinion Writing in the U.S. Supreme Court, 1946–1997

Objectives . We develop hypotheses to explain the opinion writing by justices on the U.S. Supreme Court from 1946–1997. Methods . We use data from the U.S. Supreme Court Database, Phases I and II, to examine the proportion of cases in which a justice writes an opinion each term as well as the differences between writing majority, dissenting, and concurring opinions. OLS regression with robust standard errors is the estimation procedure. Results . We find that a justice's position as Chief Justice, professional and education background, reputation ranking, and tenure on the Court can explain a justice's opinion writing. At the same time, we discover that particular variables have different affects on writing majority, dissenting, or concurring opinions. Conclusions . This study demonstrates the importance of both structural and personal background variables in explaining judicial behavior. It also shows the importance of analyzing different kinds of judicial opinions when explaining the justices' opinion writing.     

The Rights and Responsibilities of Gay and Lesbian Parents: Legal Developments, Psychological Research, and Policy Implications

With the growing number of same-sex unions, the legal system must determine the rights and responsibilities of gay parents who decide to end a relationship. In 2005, the California Supreme Court found that a child's lesbian caregiver was a legal "parent" despite having no biological or adoptive relationship, while the Massachusetts Supreme Court in 2004 concluded the opposite. Psychologists can inform this debate by presenting research demonstrating that (a) children benefit from contact with two parents, and (b) children's well-being is unaffected by their parents' sexual orientation. Psychologists can further assist the legal system by conducting future research. In order for psychologists to impact laws and policies, legal actors must utilize this expertise .     

Criminal defendants’ family and the death penalty in China - a case analysis

ABSTRACT

The restorative justice movement has increased the rights of consciousness for crime victims and their families globally. Though the practice of family group conferences in Australia and New Zealand and the court-ordered mediation programmes in China have increasingly involved defendants and their families, their roles in the criminal justice system have not been the main focus of academic inquiries. Citing a high-profile capital case in China, the Nian Bin case, this study examines the defendant family’s strategies in seeking legal redress, managing physical, emotional and financial tolls as well as coping with the victim families, throughout their eight-year pursuit of Nian’s exoneration. Given Confucian teachings on the importance of family to the individual and the society at large, this study provides a microscopic view into various precipitating factors for a capital defendant’s family activism. It also draws broader implications for China’s criminal justice reforms and the restorative justice movement.     

法制下法治与法治下法制

法制下法治和法治下法制是两种不同的社会存在。法制下法治之治理主体单一,法治下法制治理主体多元;法制下法治依赖国家法正义观支持,法治下法制依赖多维正义观支持;法制下法治以人为治理客体,法治下法制则以人和法律同为治理客体。在特定历史阶段,法制下法治曾经起过积极的作用;但是随着社会发展,民主勃兴和社会转型的逐步推进,法制下法治已经成为中国法制建设的瓶颈,应为法治下法制的理论和实践所突破。法治下法制是多元法律规则并存于社会与依法办事之法治原则的结晶。通过各种法规则的冲突、互动和整合,法治自然会从理想走向现实。     

The Application of Pareto＇s 80/20 Rule to Law： A Quantitative Analysis Based upon Trials Involving a Plea of Guilty

在法律领域，特别是在诉讼等争端解决领域，司法机关可以通过简化简单多数和优化复杂少数实现最优司法资源的配置。司法机关简化简单多数，是要在保证法律主体基本权利的前提下，本着简化程序而不简化权利的原则降低司法活动的边际成本，提高司法效率并促进司法公正。基于被告人认罪案件审理的定量分析结果，中国刑事司法领域通过简化简单多数来优化复杂少数的资源配置机制还有较大空间。2012年《刑事诉讼法》确认的被告人认罪案件简易程序的实施，需要充分保障被告人获得律师帮助的权利，并提高侦查、起诉和审判等环节的司法效率，才能在整体上科学配置刑事司法资源并有效促进司法公正。     

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA An empirical study of the application of death penalty

本文以最高法院示范性案例中的全部“死罪”案例为样本进行法律解释学的实证研究，发现了犯罪中是否构成死罪、死罪中是否适用死刑、死刑中是否立即执行的一些重要不同，并根据这些发现认为，法律解释既是规范判断又是自主判断，应尽可能提高法律本身的明确性以呼唤死刑适用更大程度上向规范层面的回归。     

THE IMPORTANCE OF PROCEDURAL JUSTICE IN SECURING COMPLIANCE: A STUDY OF TAX SCHEME INVESTORS

Throughout the 1990s, tens of thousands of Australian taxpayers invested in mass‐marketed tax effective schemes. They enjoyed generous tax breaks until the Australian Taxation Office (ATO) told them in 1998 that they abused the system. This study examines the circumstances surrounding taxpayers' decision to invest in scheme arrangements. It also explores investors' perceptions of the way the ATO handled the schemes issue and, perhaps more importantly, why such a large number of investors defied the ATO's demands that they pay back taxes. Data were taken from in‐depth interviews conducted with 29 scheme investors. Consistent with the procedural justice literature, the findings revealed that many scheme investors defied the ATO's demands because the procedures the ATO used to handle the situation were perceived to be unfair. Given these findings, it will be argued that to effectively shape desired behaviour, regulators will need to move beyond enforcement strategies linked purely to deterrence. A strategy that aims to emphasise the procedural justice aspects of a regulatory encounter will be discussed.     

The Importance of Adult Guardianship for Social Work Practice

Abstract

Guardianship is a legal intervention used to protect incapacitated adults through the appointment of a surrogate decision maker. Demographic trends and improvements of medical technology suggest that gerontological social workers ought to be particularly concerned about guardianship as more people live into older ages with some degree of impairment. This article presents an overview of the guardianship decision-making process and of the roles social workers can have in promoting social justice through this process.     

SPECIAL ISSUE： FOCUSING ON THE REVISION OF CHINA＇S CRIMINAL PROCEDURE LAW IN 2012 Research on the Legal Attributes and Values of Forensic Testimony in Criminal Proceedings from the Perspective of Legal Norms

就法律规范层面而言,鉴定在刑事诉讼过程中的法律属性体现为两个方面：一是证据的收集方式,一是权力的行使方式。鉴定的这两种法律属性的价值追求是不同的,作为证据收集方式的价值追求是“公正”,而作为权力行使方式的价值追求是“效率”。从涉及刑事诉讼鉴定不同阶段的法律规范分析来看,鉴定正逐步从权力行使属性为主导向证据收集属性为主导过渡,但要真正实现其证据收集这一本质属性的回归,其前提是《刑事诉讼法》的价值追求的变化,即从“效率”到“公正”的转变。     

Variations in the Over-Representation of Aboriginal Young Offenders in the Criminal Justice System

It is well publicised that Aborigines, both adult and juvenile, are over-represented in the criminal justice system. However, an examination of youth offending in South Australia during the period 1 July 1979 — 30 June 1983 has indicated that the degree of Aboriginal over-representation increases rapidly as they move up through the various stages of the system. They are least over-represented at the lowest stage, namely at the Children's Aid Panel level, and most over-represented at the sentencing stage of the Children's Court in terms of the numbers sentenced to detention in a youth training centre. This raises questions about the applicability of the juvenile section of the criminal justice system to Aborigines.