Law Judges Research Articles

Mirror, Mirror on the Wall: Stigma and Denial in Social Security Disability Hearings

Commentators have recently suggested that the Social Security Administration (SSA) abandon its non-adversarial model of adjudication utilized in the disability hearings process in favor of an adversarial system, where the United States would be represented by an attorney. This Article will argue that such measures are not necessary to provide the claimant with a full and fair hearing, and will not lead to more consistent or accurate outcomes. Rather, this Article will argue that adoption of an adversarial model of adjudication will radically transform the nature of the disability adjudication process. This potential shift in the character of the hearings process is problematic given claimants may experience shame and embarrassment about the nature of their impairments. Individuals with stigmatized disorders such as obesity may be reluctant to discuss their obesity with either physicians or the Administrative Law Judge (ALJ). A shift to the adversarial model may only serve to intensify barriers to open communication about stigmatized disorders.This Article will argue that while conversion to an adversarial system is not necessary, some reform of the inquisitorial model is needed as evidenced by the SSA’s inability to consistently decide claims filed by similarly situated obese individuals. This conclusion is necessitated by research concerning the impact of negative halos on decision making. In other words, decision makers may make choices and judgments based initial impressions of claimants.However, positive reform of the inquisitorial model can be achieved by further definition of the contours of the ALJ’s duty to develop the record. The first point will consider coping mechanisms utilized by individuals with stigmatized impairments, such as obesity, in applications for benefits. The Article’s second major point will explore how these coping mechanisms effectively limit a claimant’s ability to communicate about the limiting nature of her obesity. The inability to communicate about weight will, in turn, have a profound impact on her chances of being successful in the disability adjudication process because the testimony and records may not adequately document the claimant’s weight as a limiting factor. Thus, there is a need for standardized protocols to be developed to ensure that the ALJ properly considers stigmatized disorders such as obesity, even in instances where the claimant does not allege her obesity as a disabling factor. This reform will improve ALJ decision making in the context of a non-adversarial hearings process.

The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan

Dozens of law review authors and judges have proclaimed a Chevron Revolution in the Supreme Court's willingness to defer to agency interpretations, but few authors have examined this claim in a systematic empirical manner. Seeking a more factually grounded understanding, Professor William N. Eskridge, Jr. and Lauren Baer, Esq., conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue. Eskridge and Baer conclude that there has not been a Chevron revolution, at the Supreme Court level anyway. The new deference regime associated with the Chevron decision continues to exist alongside older deference regimes, including Skidmore, Seminole Rock, Beth Israel, and Curtiss-Wright. Indeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3 percent of Supreme Court cases evaluating agency statutory interpretations. Instead, the Court has employed a continuum of deference regimes. This continuum is more complicated than the literature or the Court's own opinions suggest, and it is a continuum in which Chevron plays a modest, perhaps even minor, role. Perhaps the authors' most striking finding is that in the majority of cases - 53.6 percent of them - the Court does not apply any deference regime at all. Instead it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases. Eskridge and Baer find that neither Chevron nor the other deference regimes is applied consistently by the Supreme Court. The authors find some functional regularities, however. The Court is most likely to defer to agency interpretations when they are consistent with norms recognized by the Justices, reflect the application of genuine expertise to a statutory problem, and are pursuant to delegated lawmaking authority. Eskridge and Baer also find that almost all of the Justices vote ideologically; that is, conservative Justices are significantly more likely to agree with conservative agency interpretations, and liberal Justices are significantly more likely to agree with liberal ones. The last portion of the article applies the empirical findings to address normative questions. Based upon an examination of constitutional structure and legitimacy; the rule of law and the regnant super-statute, the APA; and institutional competence, Eskridge and Baer argue against proposals that either significantly expand or jettison the special Chevron two-step framework. The authors' main prescriptions are friendly amendments to the Court's practice and recommendations that judges rethink basic doctrines of statutory interpretation in light of the modern administrative state.

Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)

Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect of several important aspects of contract law, notably unfairness, mistake, and privity, former equitable approaches were, after 1875, effectively marginalized both by the courts and by the writers of treatises on English contract law.

Administrative Law Judges in Fair Housing Enforcement: Attitudes, Case Facts, and Political Control

ObjectiveThis study investigates the effect of attitudes, case facts, and political control on the fair housing decisions made by administrative law judges (ALJs) at the Department of Housing and Urban Development (HUD).MethodsBased on data obtained from HUD under a Freedom of Information Act request, we use Probit regression to model the outcomes of every housing discrimination case decided by the entire population of ALJs between 1989 and 2003.ResultsWe discover significant variation in the likelihood of a pro‐complainant outcome and the amount of actual damages awarded in fair housing disputes.ConclusionThe attitudinal model of judicial decision making appears to apply to ALJ behavior in housing discrimination cases. At the same time, case facts, bureaucratic oversight, and other legal factors constrain ALJs.

Judge or Bureaucrat? How Administrative Law Judges Exercise Discretion in Welfare Bureaucracies

Administrative law judges are neglected but powerful actors in public welfare bureaucracies, presiding over quasi-judicial hearings triggered if participants challenge a bureaucratic decision on public welfare benefits. Drawing on ethnographic observations of fair hearings, as well as interviews with administrative law judges and appellants, this study seeks to understand the ways in which these judges exercise discretion and how it affects the adjudication of disputes. Findings suggest that disputes generated by poorly run bureaucracies provide judges with limited opportunity to use professional skills or discretion to scrutinize bureaucratic practices. When opportunities for such judgments do arise, judges take widely divergent paths. Some align themselves with the welfare agency, enforcing bureaucratic practices rather than scrutinizing them. Others emphasize their neutrality and judicial role, scrutinizing and aligning agency practices with the law’s underlying purposes.

Why the Rabbis of the Yerushalmi Called R. Judah Nesiah “a Great Man”

We can demonstrate the accomplishments and status of Judah Nesiah’s predecessors using texts that show these earlier Patriarchs exercising their powers, often apparently for the first time, and we can use specific evidence in later sources of the accomplishments and status of his successors. But Judah Nesiah’s powers, accomplishments and status must either be deduced from what we know about his successors or teased out of sources close to his time, in part by new readings of familiar texts. On these bases we find that he presented himself to both the Roman government and the Jews as the leader of the empire’s Jews; that he instituted or solidified several practices that his successors built on, such as raising funds and beginning to supervise Jewish institutions; and that he attempted even more by working to establish a relationship with the imperial government, including with the emperor himself, and unsuccessfully trying to obtain imperial recognition for the Jewish law judgments of Jewish courts.

Advance Directives: A Tool for Reducing Coercion

Back to table of contents Next article Taking IssueFull AccessAdvance Directives: A Tool for Reducing CoercionRichard J. Bonnie, LL.B.Richard J. BonnieSearch for more papers by this author, LL.B.Published Online:1 May 2012https://doi.org/10.1176/appi.ps.20120p411AboutSectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail In this issue, three Best Practices columns and an Open Forum commentary address the use of coercive practices in recovery-oriented care. However, a service system strained for resources and experiencing high staff turnover and demoralization cannot create and sustain a recovery orientation. Indeed, rates of coercion are likely to be high in such a system. The most promising way to reduce coercion is to create an accessible recovery-oriented system that draws people into treatment because it provides what they need and want, thereby reducing the need to push them into services.A recovery-based mental health system uses coercion only when necessary to prevent harm or arrest severe deterioration, only as a last resort, and always with respect for the person's dignity. Recovery envisions a process by which persons experiencing a mental disorder take control of their lives, including planning for care in a crisis, assisted by caring partners. For those who are strongly treatment-resistant or have not begun the recovery process, there may be no alternative to coercion. As systems are transformed, however, more clients will undertake explicit crisis planning, which involves execution of advance directives.Virginia is undertaking a systemwide effort to promote completion of advance directives by mental health consumers with support from community agencies, hospitals, the bar, and consumer advocacy groups. A Web site provides access to resources, along with information and guidance about the legal effect of executing an advance directive under Virginia law (www.virginiaadvancedirectives.org).As discussion and execution of advance directives are incorporated into routine care and into peer-driven activities, it is expected that coercive interventions will be needed less often and that, when needed, they will be provided in accord with the client's previously expressed preferences, making the interventions less likely to be experienced as aversive. Ideally, advance planning will shape the way families, clinicians, and even law enforcement officers and judges respond when a client's decision making becomes impaired, allowing them to share information and provide treatment and support in accord with previous authorizations. Indeed, the term “coercion” may be out of place in these contexts because consent, when needed, has been provided by the client in advance.From this perspective, use of advance directives, together with agreements for leveraged community treatment, represent an effort to shift the legal model of care, even in crisis, “from coercion to contract.” Community services providers should be encouraged or required to promote the use of advance directives. In time, the number and proportion of clients with executed advance directives will be a useful performance measure of progress toward a recovery-oriented system.Schools of Law, Medicine and Public Policy, University of Virginia, Charlottesville FiguresReferencesCited byDetailsCited byAdvance Directives for Mental Health Care: Innovation in Law, Policy, and PracticeHeather Zelle, J.D., Ph.D. Kathleen Kemp, Ph.D. Richard J. Bonnie, LL.B.2 January 2015 | Psychiatric Services, Vol. 66, No. 1Ethics, Medicine and Public Health, Vol. 1, No. 3BMC Health Services Research, Vol. 15, No. 1 Volume 63Issue 5 May 2012Pages 411-411 Metrics PDF download History Published online 1 May 2012 Published in print 1 May 2012

The Reality of EU-Conformity Review in France

French High Courts have embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU directive enforcement and similar willingness to refer questions to the ECJ for preliminary rulings demonstrate that, despite adopting dissimilar approaches to the supremacy of Communitarian law, French judges have flourished as Communitarian law judges. The article concludes by presenting an explanation for this high degree of convergence: French judges, responding to growing European integration and enabled by a changing constitutional landscape, adjusted their views to ensure they would have a role in molding the integration of national and EU law.

Principles in Private Law: From Luxury to Necessity – Multi-layered Legal Systems and the Generative Force of Principles

Abstract: 'Iustitia est constans et perpetua voluntas ius suum cuique tribuens.' One of the ways to make 'iustitia' (justice) substantial is by using principles. Studying the role of principles in cases governed by various fields of law (e.g., private law and European Union law) makes clear that principles can play a role in two ways. The first is the role recognized in modern private law: principles functioning within a system with detailed rules and bringing as an extra to that system an interpreting, supplementing or derogating function. The second way can be discovered in European Union Law: the generative function of principles used out of necessity to build up a young system and to generate and develop rules in more detail. Cases governed by more layers of law, for example Angonese and Mangold, show that principles indeed may play a role different from the one they play in regular private law cases and that the landscape for the private law lawyer has been reshaped slightly and will be reshaped even more intensely. That being a fact, the question is how a private law lawyer is supposed to define his reaction to these developments, these facts? It is a question that is hardly stressed in the broad debate about multi layered law. The aims of a private law contribution to European Union law in my view are (a) that private law gets integrated in European Union law by adjusting to the aims and principles of European Union law; (b) that it takes part in the process of development, refinement and sophistication of European Union law; (c) that it remains a smoothly functioning part of multi layered law; (d) that private law preserves its ability to give each one his due in a more or less predictable way; (e) that private law for that reason develops its function in supporting the effectiveness of European Union law and (f) that actors in European Union law (e.g., ECJ, legislator) be more aware of the impact of European Union law on private law and for that reason (g) take this impact into due consideration in judgments and provisions. To achieve these aims a two-way traffic between European Union law and private law must be established. The question is: how can private law lawyers, judges and scholars become involved? Which approaches should be chosen in case of confrontation of a field of law, private law, containing refined rules, with a field of law, European Union Law, containing less detailed rules and more concrete policies that do not specifically aim at private law relationships? In other words, which approaches should be taken when confronting a system that has developed into utmost refinement with a system that has started to be built up only a few decades ago. How can these parts of the law be bridged?

Narrative Approaches in Psychological Autopsies: Suggestions for Methodologies and Training

This paper consists of three sections. The first section will review the literature describing the role of narratives surrounding legal proceedings, psychological autopsy (PA) reports, and testimony. It describes the extensive role that narratives play in courts and with jury decisions as well as how narrative analyses comply with the law judges use to allow or disallow expert testimony. The second section will assert that narratives can play significant roles in both assessing investigative narrative and in testifying to the results of psychological autopsies. This describes how narratives and narrative analysis form the basis for effective investigations and effective testimony. The third section will suggest training tools and methods using narrative approaches. This article suggests methodologies and skill sets for narrative approaches to PA's in both the investigative and testimonial stages.

Towards Universal Fiduciary Principles

This Article focuses on unifying fiduciary law in Civil Law and the Common Law systems. The problems that fiduciary law addresses are similar throughout history and in all societies. However, the legal systems which address these problems differ. While in the Common Law fiduciary law is founded on property law, in the Civil Law similar fiduciary principles are found in the category of contract. However, the reach and basis of contract law in each system differ. Common Law judges tend to strictly enforce the parties’ contract terms while Civil Law allows for far more judicial discretion to impose fairness principles on the parties’ contract terms. This Article offers a number of ways in which the two systems of law can coincide and concludes and suggests by-passing the differences between the two systems by focusing on the results reached in each and at the same time following the models of dual systems.

L’intime conviction des magistrats : subjectivation pénale et conflit subjectif dans un cas d’inceste

In the French law tradition, jurors and judges have to use their intimate conviction to judge not only the reality of the act, but also the intention of the author and his/her spirit. This article builds upon the logic and confrontation of elements of prosecution and defense; deriving along with other motifs from the necessary personnal implication of the magistrate in the construction of his or her judgement and continued support of it. However, adressing the process of intimate conviction from a psychoanalytic perspective exposes third level of conflict: one between mental cognitions; one between trust and distrust regarding one's own representations, and another regarding one's own affective tendencies, which have to keep away. Our objective is to study how the judges, subjectively, appropriate or not the conflict induced by legal texts on intimate conviction. Drawing on an analysis of interviews with judges about a rape case that occurred within a family, with no other element of proof than the weight of the testimony and the avowal of the victim, we extrapolate how the subjectivation of the criminal act is dependent upon the relationship judge had with his or her own capacity to withstand the psychic conflict it induces.

The Agency Class Action

The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight. Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: the class action and other complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.

A Madisonian Response to Posner and Abebe

In seeking to further dethrone the aims of legal liberalism in the United States, Professor Posner, along with his University of Chicago Law School colleague, Professor Daniel Abebe, have jointly produced a renewed endorsement for broad judicial deference to an unchecked Executive in the context of foreign relations, provocatively entitled The Flaws of Foreign Affairs Legalism. Flaws boldly takes aim at “foreign affairs legalism” - a loosely defined “school of thought” among law professors, practitioners and judges who, among other things, believe the President should be constrained by law - which they assert rests on “implausible assumptions” and remains divorced from past and present historical and constitutional practice. The familiar justification for foreign affairs deference focuses heavily on the frequently perceived comparative institutional advantage of the Executive Branch, including access to information, decisiveness and swiftness of action. Such superior traits also gives Flaws reason to so conclude that courts should “[a]s much as possible, solicit the executive’s views on disputes involving foreign affairs and defer to these views except under unusual circumstances” since “[i]ncreased deference to the executive would ensure that the most accountable branch continues to exercise primary foreign affairs decision-making authority.” Forget about judicial review - not only is the President subject to an electoral test ensuring alignment with the public interest, but the President also cares about his “legacy” and finds himself constrained by both party politics and this public opinion. This paper argues that excessive faith in stand-alone functional arguments are not enough, since deference unduly removes accountability in favor for unchecked decision-making, an extreme anathema to the liberal constitutional structure underlying American government. Although I criticize the Executive-primacy model advocated by Flaws, I do recognize that functional concerns constitute significant components for sound national security policy. Nonetheless, effectiveness in foreign affairs responses cannot be limited to mere mechanical calculations. Simply placing faith with those in office to correct their own aberrations, pathologies, and errors without external checks will only undermine the demand for accountability, predictability, and transparency commonly understood to form the basis of the rule of law. In Part I, I attempt to demonstrate two things: First, that the Executive Branch has not been a good promoter of international law. Far from Flaws bold assertion that the “executive branch has been a primary motor for promoting international law”, recent American history suggests otherwise. More pointedly, violations of international law - including outright disregard for international treaty obligations, disrespect for international institutions and even complicity in encouraging flagrant violations of international human rights norm - are commonplace. Second, I contend that the Supreme Court has hardly indicated an inclination to defer to presidential claims in the foreign relations/national security context. In Part II, I explore and critique Flaws arguments for judicial deference. Contrary to the scenario that “[w]hen national emergencies strike, the executive acts, Congress acquiesces, and courts defer,” the judiciary has not and should not be marginalized. As the history of constitutional democracy shows, nations purporting to follow a clear constitutional set of legal principles often fall prey to the peculiar pathology of enacting draconian statutes in response to emergencies,” including most recently the Prevention of Terrorism Act of 2005 in the United Kingdom the PATRIOT Act in the United States, along with troubling acquiescence to increased presidential power claims at the expense of judicial constraint. The central point discussed in Section II is that Flaw’s arguments are in tension with social psychological findings suggesting inherent shortcomings in limiting decision-making review to a small group of individuals. The processes involved are manifold and complex, but studies have long pointed out the unconscious tendency of individuals processing of information to arrive at conclusions that suit some pre-determined end or goal. This pre-determined end or goal is often tendentious and ideologically driven, humans tend to persist in their biased theories, beliefs, and expectations. Instead of relying on all available sources of knowledge, individuals are often prone to selectively access a subset of beliefs and epistemological constructs that support prior held conclusions. Studies also have shown how individuals are often predisposed to fit their perceptions of policy-relevant facts to their group commitments. Identifying such empirically established psychological descriptions of human decision-making, giving a plausible and textured account of how they function, and devising instructive lessons from these findings can help improve policy making in the national security context. To be sure, the fact that the motivation of self-interest can distort human judgments does not translate into a free for all. Rather, it suggests excessive deference in those charged with securing American national security as a mistaken course of action.

The Rule of (Administrative) Law in International Law

I INTRODUCTION In common-law legal orders, public power is supposed to be exercised in accordance with the rule of law. Administrative law, the law that governs the exercise of power by public officials, is the body of rules and principles developed by judges to ensure that when public officials act, they act in accordance with the rule of law. Severe tensions can arise within the common-law understanding of administrative law when a legislature enacts a law that meets the legal order's formal criteria for validity, yet purports to exempt officials from the requirements of the rule of law. If those officials' decisions are challenged before a court, should the court declare them invalid simply on the basis that they fail to accord with the rule of law? Judges who adopt positivistic theories of law will generally answer no to this question, while judges of a more natural law bent will tend to answer yes. The former will determine a law's validity based only on the criteria explicitly set out in the positive law of their order, while the latter will think that there is more to the question than positive law--namely, the transcendent moral values of the rule of law. Although judges of a natural-law bent will likely appreciate the tensions better than positivistically inclined judges, a more sophisticated response to the problem is available than one that simply reduces it to a question of whether a law offensive to the rule of law is or is not a law. That response presupposes a natural-law understanding of the rule of law, one which holds that the value content of the rule of law transcends what any formal source of law declares the law to be. However, such a response does not require that a law is always invalid when it fails to comply with the values of the rule of law. Rather, all it requires is that the tensions created by such a law are understood as tensions internal to legal order, tensions which must be resolved in order for that legal order to sustain its claim to be such--an order constituted by law. Thus, judges are not necessarily always able or even often best suited to resolve such tensions. An exploration of this response begins with an account of how judges in common-law legal orders have found the norms of international law, in particular international human rights law, helpful in elaborating their understanding of their role in upholding the rule of law. Indeed, international human rights law has helped greatly to clarify the idea of the rule of law on which the judges rely, both in terms of the interactions among its components and the assumptions that hold it together. Judges have found international law particularly useful in ensuring that the rule of law is respected in an area in which traditionally positivistic judges have deemed the rule of law inapplicable--namely, in the exercise of public power, which is based, not on law, but on the prerogative of the executive to deal with immigration and national security as it sees fit. Natural-law judges have been amenable to the influence of international law because their understanding of law and the rule of law rejects positivistic assumptions that lead to the marginalization of international law, even to its very claim to be law. However, international legal bodies have proven capable of introducing the same sorts of tensions--tensions often created in the areas of national security and immigration. One might say that these natural law judges, working within the common law tradition, have paid international law the compliment of not only recognizing its claim to be law, but also of considering it to be constitutive of their understanding of the rule of law or legality, so that public officials must comply with international law if they are to abide by the rule of law. Thus, it is incumbent on the international bodies charged with making decisions affecting the interests of individuals subject to their legal regimes to repay the compliment. …

Facebook Meets the NLRB: Employee Online Communications and Unfair Labor Practices

In the past eighteen months, the National Labor Relations Board (“NLRB”) has received approximately one hundred charges from employees that were disciplined or fired as a result of their work-related online communications, principally through Facebook. These and other charges have resulted in twenty-one NLRB Office of the General Counsel Advice Memoranda, ten General Counsel reviews, four Administrative Law Judge (“ALJ”) decisions, and one Board decision, all addressing employee use of social media. This Article is the first to examine in detail those employee charges and the thirty-six incidents addressed by the Office of the General Counsel, the ALJs, and the Board. This Article’s analysis reveals that, based on these charges and incidents, most employees are not engaging online in concerted activities protected by the National Labor Relations Act. Rather, for the most part, they are griping about work and getting fired for it. However, these charges and incidents have raised concerns over the enforcement of overly broad social media policies by employers. Most importantly, the nature of social media technologies raises new issues of unlawful employer surveillance that have yet to be directly addressed by the NLRB. These three issues are examined through this article: determining when employee online communications are protected concerted activity, determining what constitutes an acceptable social media policy, and determining when an employer might engage in unlawful online surveillance.

Derecho Patrimonial Canónico (review)

Reviewed by: Derecho Patrimonial Canónico Jobe Abbass OFM CONV, Professor of Canon Law Derecho Patrimonial Canónico by Jean-Pierre Schouppe. Pamplona: Ediciones Universidad de Navarra, S.A. (EUNSA), 2007. As the author states (18), this manual is the Spanish version of his 1997 Elementi di diritto patrimoninale canonico but he has revised and augmented it [End Page 271] particularly from the perspective of Spanish civil and canon law (both universal and particular) as well as by his ten years of experience teaching this subject at the Pontifical University of the Holy Cross in Rome. Instead of the usual running commentary of the canons of Book V of the Latin Code, the author has opted for a more wide-ranging treatment of the matter that draws from these many perspectives in eight chapters for just over two hundred pages. Chapter 1 provides a very brief description of the present structure of the Latin Code in terms of temporal goods and its application of subsidiarity and the "canonization" of civil law. Chapter 2 describes constitutive principles of canon law respecting temporal goods (CIC cc. 1254-1258), while chapter 3 treats the classification of those goods. The juridical ways of acquiring temporal goods (Title 1, Book V) are dealt with in chapter 4. At the core of the book (100 pages), chapter 5 concerns financing the Church in the various ways indicated by the Latin Code (Titles 1 and 4, Book V), while the administration and alienation of ecclesiastical goods are treated in chapter 6 (Titles 2 and 3, Book V). Chapter 7 examines the diocesan and parochial structures that oversee financing. Finally, chapter 8 regards the administration of goods in religious institutes and societies of apostolic life although the latter do not seem to be covered. The option to treat the subject of temporal goods from so many perspectives was both interesting and innovative. That said, however, the lack of any index proved frustrating for one searching to find where a certain canon was discussed. The author might think of adding an index to a second edition of this manual or, even better, to an augmented edition of his 1997 Elementi since there is really a need for a good, updated commentary on temporal goods in the Catholic Church. That is not to discount in any way the importance of the interrelationship of civil and canon law in the context of Church ownership of goods in society today. In fact, it is a very delicate subject that has to be studied more thoroughly especially in the light of increasing legal claims against Church property and the hierarchy. In this regard, as a canonist, it is easy to agree with the author that the pope does not have shared ownership (dominium) but, instead, assures the ecclesiality over property by his power of governance (50). While this argument might convince theoretically-minded civil law jurists, it probably would not persuade concretely-minded common law judges who are increasingly asked to judge the vicarious and/or strict liability [End Page 272] of the hierarchy, and even of the pope, in abuse cases. Here, details regarding the pope's primacy and power over temporal goods (177-178), if introduced into evidence, would probably assure a civil judge's unfavorable decision. Following repeated papal calls for comparative studies of the two Codes of the Catholic Church, it is to be hoped, at least at the doctoral level and beyond, that canonical studies duly consider the integral parts of the Church's one Corpus iuris canonici. The book's introduction, however, expressly states that the manual deals with temporal goods in the Latin Church but it does, happily, make a few, footnoted references to the Eastern Code. Still, footnote 3 should be updated bibliographically for Eastern references on the subject [see Folia canonica 5 (2002) 125-147]. This manual is undoubtedly the product of serious and ongoing scholarship. In the area of ecclesiastical goods, it is bound to be useful as a reference for canonists in general and as an important resource for Italian and Spanish canonists in particular. Jobe Abbass OFM CONV, Professor of Canon Law Saint Paul University Ottawa, Canada Copyright © 2012 The Catholic...

ANALISIS HUKUM TERHADAP VONIS BEBAS TERDAKWA KASUS KORUPSI OLEH MAJELIS HAKIM DI PENGADILAN NEGERI POHUWATO

Key issues that dikemukkakan in this study is to know the basic considerations Pohuwato District Court Judge in imposing sentence is free from all charges in a case of criminal corruption, as well as to determine and analyze the factors - factors that influence the birth of an acquittal verdict of all charges in a case of follow-corruption in the District Court Pohuwato. Research results indicate that the District Court Judge Pohuwato in handling corruption cases required an increase in HR and has a High Morale, so there is no more corruption cases in the future in a verdict free from any claims Law Judge in order to maintain credibility and maintain the trust of the community.

Judicial Policy Lines in the Criminal Sanctioning of Environmental Offenses: An Empirical Study

We analyze judicial policy lines concerning criminal environmental sanctioning using a unique European dataset of individual criminal cases, including case-specific information on offenses and offenders. We investigate policy choices made by criminal judges in lower courts as well as the relevant court of appeal. The sanctioning policy of judges proofs to be varied as well as consistent. Judges decide to postpone convictions for cases they deem less important. They carefully balance effective and suspended sanctions, in general using them as substitutes, but in specific cases opting to use them cumulatively. Overall, judges in lower courts balance environmental and classic criminal law and aim at protecting individuals and their possessions as well as the environment.

Contesting the Bureaucracy

This article explores citizens’ use of administrative hearings to appeal adverse government decisions about their welfare benefits. It draws on interviews with 79 welfare participants and observations of hearings and interviews with administrative law judges in a state in the United States to understand what hearings, and the act of appealing, mean to citizens. I find that beyond individual redress, participants view appealing as an opportunity to expose and repair social injuries and to renegotiate social relationships, social identities and their status as citizens. Their ability to rehabilitate strained social identities and establish their deservingness as citizens is contingent and variable, with hearings sometimes reproducing appellants’ powerlessness and other times allowing for a more positive enactment of citizenship and social status. Over time, participants experience an increase in legal consciousness, using the knowledge of the law and bureaucratic practices they glean from hearings to better navigate the welfare bureaucracy. While this transformation of legal consciousness emphasizes individual gains rather than collective or systemic change, it cultivates a culture of complaining, rather than acquiescing, within the welfare bureaucracy.