司法构造：超越民事诉讼-毕业论文外文翻译.docx

《司法构造：超越民事诉讼-毕业论文外文翻译.docx》由会员分享，可在线阅读，更多相关《司法构造：超越民事诉讼-毕业论文外文翻译.docx（11页珍藏版）》请在淘文阁 - 分享文档赚钱的网站上搜索。

1、外文翻译Springer New York,2008:257-272原文：Constructs of Justice: Beyond Civil Litigation Of：Alan J. Tomkins and Kimberly ApplequistIt is the case that civil justice problems constitute the bulk of courts work inboth the state and federal legal systems (see, e.g., Court Statistics Project, 2006;U.S. Court

2、s, 2007). Nevertheless, a decision rendered by a jury (or a judge) takes place in only a relatively small percentage of civil disputes. There are exponentially more civil disputes resolved outside of court than are resolved via jury verdicts (see,e.g.,Galanter, 1983, 1993, 1996; Miller & Sarat, 1980

3、1981; Trubek, Grossman, Felstiner, Kritzer, & Sarat, 1983), a state of affairs true for the UK as well as the US (Pleasence, 2006). Herschs (2006) analysis of nearly 3,800 federal civil cases shows even a litigants request for a jury trial rather than a bench trial (regardless of whether it emanates

4、 from the plaintiff or the defendant) in trial-eligible cases is more likely to result in the parties out-of-court settlement than it is to result in a jury verdict.The empirical reality, thus, is that juries play only a limitedit is fair to say,a relatively minorrole in civil dispute resolution. Ye

5、t jury research has dominated the scholarship of the psychology and law community virtually since therevival of psych -olegal research in the 1970s, and the pattern of focusing on jury matters continu es today. This chapter is a call for psycholegal scholars to study civil justice matters beyo -nd t

6、he context of litigation and the courts, both to allow us to better understand the resolution of civil issues in the litigation/court contexts and to better understand the larger institutional (and sometimes societal) contexts in which civil disputes materialize and are most often resolved (see Fels

7、tiner, Abel, & Sarat, 19801981; Galanter, 1983, 1993, 1996; Kritzer, Vidmar, & Bogart, 1991; Trubek et al., 1984; Trubek, Sarat, Felstiner, Kritzer, & Grossman,1983).An area of psycholegal research that has provided significant insights into civil disputes is the different conceptualizations of just

8、ice. Over the last fiftyyears or so, there has been a great deal of commentary and research into various psychosocial constructs of justice. In this chapter we focus on the more Prominent justice theories, that is, distributive, procedural, restorative, and retributive justice.Briefly, distributive

9、justice is concerned primarily with the perceived fairness of the outcome of a given proceeding, whether that proceeding is judicial, quasi judicial or entirely non-judicial in nature. Procedural justice, in contrast, is concerned with whether the procedures used in a given process are considered fa

10、ir by the participants, and is similarly not restricted to judicial settings. Restorative justice is concerned, as the name implies, with restoring an injured party to his or her pre-injury state and helping the injuring party recognize and redress the injurious nature of his or her acts. Finally, r

11、etributive justice looks at the psychology of responding to harms that have been inflicted. Recent research indicates that retributive and restorative justice principles are, as with the distributive and procedural justice contexts, applicable outside the judicial context. Justice constructs as well

12、 as the numbers, their boundaries, etc. For purposes of this rely on the constructs of justice used by Tom Tyler, by far the most prolific and important of modern justice scholars, and his colleagues in their book, Social Justice in a Diverse Society.Constructs of Justice: Beyond Civil Litigation 25

13、9 distribution of resources among competing parties, while a need-based allocation might result in a previously disadvantaged party receiving a larger share of the resources, and an efficiency-based allocation might call for distributing a larger share to those parties that produce the most. In a gi

14、ven situation, then, how might one decide which principle(s) should be applied to make an appropriate allocation determination? There is, perhaps not surprisingly, some dispute about this. Rawls himself felt that the principles apply in some sort of orderly hierarchy, but others have argued that peo

15、ple may use most or all of the principles to some degree, depending on the given situation . Research in the area of distributive justice also suggests that there may be differences in priority for people of different demographic groups. Gender, race, and cultural background can all affect distribut

16、ion prioritization, as can cognitive processes such as attributions.Given the principles that appear to be at work in the distributive justice construct, then, it is not difficult to see how research in this area could tell us much not only about civil justice in courtroom settings, but also about l

17、egislative decisions that regulate courtroom outcomes or allocate resources directly. Distributive justice principles would be particularly valuable to examine public satisfaction with administrative agency decision-making, which regulates so much activity in American society, particularly with resp

18、ect to the allocation or distribution of resources.Procedural Justice Perhaps somewhat surprisingly, distributive justice principles are often less important to disputants than other factors when individuals are asked to evaluate their overall satisfaction with the resolution of some dispute or reso

19、urce allocation. In many instances, procedural justice principles carry greater weight than distributive outcome measures like equity or equality in determining the overall level of satisfaction for parties to a dispute. In other words, individuals who view the dispute resolution process as fair are

20、 often more willing to accept outcomes that are objectively less equal or equitable. Starting with early research by John, a social psychologist, and Laurens Walker, a law professor, into procedural justice, the role of perceptions of procedural justice has been and continues to be a major focus for

21、 researchers. Indeed, research into the interactive roles of procedural 260 A. J. Tomkins, K. Applequist and distributive justice indicates that a sense of procedural justice is usually more important than a sense of distributive justice in determining whether an outcome or distribution allocation i

22、s likely to be accepted by the parties to a dispute.Procedural justice, as the name implies, focuses on whether the procedures used to make an allocation determination are fair, without regard to the actual outcome. Tyler identifies four key factors that individuals weigh when determining whether a

23、proceeding is procedurally fair: fairness and neutrality of the decision maker; opportunity to present ones side of the dispute; trustworthiness of the decision maker; and respectful treatment of all parties during the course of the proceedings.Perhaps least surprising among the four components of p

24、rocedural justice is the requirement that the decision maker be perceived as neutral. Although it might seem reasonable that one would prefer to have a dispute heard by a judge known to be biased in favor of the claimants position,2 it is also the case that no one would want to have a matter resolve

25、d by a decisionmaker known to be biased against the claimant. Thus, it is important that the decisionmaker be perceived as neutral by all parties to a dispute in order to prevent either party from feeling that justice has suffered due to the decisionmakers bias.As important as the neutrality of the

26、decisionmaker is the opportunity to present ones side of the dispute in front of that neutral decisionmaker.Research indicates that the opportunity to voice ones position is critical to the overall perception of procedural justice. Indeed, there are reports of instances where even though a party has

27、 received everything sought in a dispute, he or she nevertheless reports frustration with the proceedings due to the denial of the opportunity to fully tell his or her story. Tyler reports defendants dissatisfaction with a traffic court judge who routinely dismissed the tickets of those who appeared

28、 in court to contest them. The judge reasoned that if the defendants had taken the time off their jobs to come to court to fight the matter, they had been sufficiently punished for whatever infraction they might have been charged with. Although the outcome manifestly favored those who contested thei

29、r traffic tickets, the defendants frequently reported that they felt frustrated with the outcome because they were not given the opportunity to present their case before the decision was rendered. Many of them had gone to some lengths to prepare their casetaking pictures of the scene or arranging wi

30、tnesses only to have all charges dropped before they could tell their side of the story. Despite the positive distributive outcome, they were disturbed by the fact that their voice was not heard.Related but not identical to the neutrality of the decisionmaker is his, her, or their trustworthiness. A

31、 biased decisionmaker by definition will not be deemed trustworthy by all parties to a dispute, but neutrality does not guaranteeIndeed, this common sentiment is the inspiration behind a t-shirt that is popular among litigators, which reads, A good lawyer knows the law; a great lawyer knows the judg

32、e.Constructs of Justice: Beyond Civil Litigation 261 trustworthiness. Rather, the decisionmaker must be an individual or group whom the parties believe will apply any relevant laws, rules, or other decisionmaking principles in an appropriate and consistent manner to oversee the proceedings and arriv

33、e at his, her, or their decision(s). Trustworthiness also has implications for legitimacy in governmental actions.As part of their in-depth analysis of a restorative justice dialogue that arose from the robbing of an Israeli woman by two Palestinian boys, Umbreit and Ritter articulate six elements t

34、o a restorative justice dialogue. First, everyone who was directly affected by the crime should be encouraged to participate in the dialogue. Second, the victim and the offender should be able to choose family members and or support persons to be present, if they desire.Constructs of Justice: Beyond

35、 Civil Litigation 263Third, critically, participation in the dialogue must be voluntary by all parties.Fourth, the process of the dialogue should be adapted to the needs of both the victim and the offender. Fifth, extra deference should be shown to the victim, but the offender should still be treate

36、d with respect. And sixth, all of the primary parties to the dialogue should be prepared in advance through in-person meetings with some mediator facilitator prior to the dialogue.While the concept of restorative justice is relatively new to American courts,similar principles can be found in many tr

37、aditional or historical societies.Gray-Kanatiiosh and Lauderdale discuss the use of restorative principles in Native American societies as a way of maintaining balance within the society.They argue that, rather than exerting control throughstricter laws, more law enforcement officers, and increased

38、fundingas a way to decrease crime inNative American communities, the money would be better spent restoringa multidimensional web of justiceby identifying, understanding and, where possible, re-creating traditional cultural social practices and structures to maintain social balance, diversity, and ha

39、rmony within their societies.The web of justice they describe includes preventative as well as restorative mechanisms that together function to maintain justice, at least justice as fairness.More recent research in the area of restorative justice has expanded from the criminal law context to applyin

40、g the principles of restorative justice in other areas. One such area is that of civil litigation. Civil litigation, and more particularly tort litigation, is generally intended to redress some injury that results from the intentional or negligent acts or omissions of another. Such cases can range f

41、rom the deliberate injury of one person by another, to medical malpractice, to the notorious slip-and-fall case. Similarly, in breach of contract litigation, a party generally alleges that it has been injured due to the other partys failure to perform under the terms of the contract, entitling the n

42、onbreaching party to damages or other equitable relief. In both types of lawsuit, the injured party sues in order to be made whole for his or her injury. Yet, is the civil litigation process, with its monetary verdicts, the best recompense for an injury?Greenes chapter in this volume is an example o

43、f the application of restorative justice in the civil justice arena. As Greene points out, the civil litigation experience can be very unpleasant for all the participants, and can ultimately leave even successful litigants feeling unsatisfied. This lack of satisfaction may stem from a number of fact

44、ors, including the length of time required for the process, its costs which include time away from work or loved ones and emotional toll in addition to legal fees and court costs and various other frustrations.Greene explores the therapeutic and especially the counter therapeutic effects of litigati

45、on. Drawing on procedural justice theory, she argues both plaintiffs and defendants in tort litigation may gain some measure of satisfaction from being able to voice their side of the story and from being treated fairly 264 A. J.Tomkins, K. Applequist and respectfully. On the other hand, the lengthy

46、 and often acrimonious process of litigation, which may stretch out for a considerable period of time and usually results at most in the exchange of monetary compensation, often without the actual dispute being heard by the court, may actually have a counter-therapeutic effect in terms of prolonging

47、 the suffering of both parties and worsening the physical and mental health and well-being of the injured party. It is for these reasons that Greene argues for adoption of a restorative justice approach to tort litigation, as its emphasis is upon speedy resolution to disputes and providing the parti

48、es an opportunity to talk through the injury and its impacts and explain their respective sides of the story. The hope is that by encouraging out-of-court resolution, the parties will find it more satisfying and allow them to move past the dispute or incident that led to the initial conflict.Rather

49、than focusing strictly on restorative justice, Robbennolt in her chapter in this volume examines the effects of apologies in a civil litigation context. While apologies can have a therapeutic effect for both an injured party and the wrongdoing party, they are often viewed as counter to the interests of the wrongdoing party, as they may be or appear to be an admission of wrongdoing and responsibility, which may affect the wrongdoing partys financial liabilityif the matter is brought to trial .Robben