Qualitätssicherung bei der betreuungsrechtlichen Begutachtung

Quality assurance in the field of medico-legal assessment for civil courts has not developed as far as in other legal fields, especially in criminal law. This also applies to assessments in cases of guardianship and custody even though assessments for these cases are much more frequent than in other areas of law. Efforts to achieve quality assurance should rely on quality standards which have been developed both in criminal law and in social law. A large proportion of these standards are suitable for all expert assessments. In addition to the specific statutory requirements in the law on the procedure in family cases and in matters of voluntary jurisdiction (FamFG), the specifications of the particular jurisdiction and especially the needs of those assessed and the courts concerned with them have to be observed. Building on the already published proposals this article attempts to systematize procedures, drafting of the assessment and the written report so that the quality of the work of the expert can be checked by those concerned.     

Guardianship determinations by judges, attorneys, and guardians

Guardianship is intended to protect incapacitated individuals through the appointment of a surrogate decision maker. Little is known about how judges, attorneys, and professional guardians assess the need for guardianship, to what extent they apply statutory guidelines when making these determinations, and how their decisions compare. Three groups of participants (probate judges, elder law attorneys, and professional guardians) read vignettes portraying older adults that varied in the extent to which the evidence supported the appointment of a guardian. They were asked about the appropriateness of various resolutions. Participants were reluctant to endorse full guardianship even when warranted by the evidence and preferred informal, family-based interventions that do not involve legal action. Professional groups did not always agree on the appropriate resolutions, suggesting that one's professional orientation may play a role in perceptions of older adults.     

Strict Confidentiality: An Alternative to Pre’s “Limited Confidentiality” Doctrine

In “Advisory Opinion on Confidentiality, Its Limits and Duties to Others” the Canadian Interagency Advisory Panel on Research Ethics (PRE) articulates a rationale for a priori limitations to research confidentiality, based largely on putative legal duties to violate confidentiality in certain circumstances. We argue that PRE promotes a “Law of the Land” doctrine of research ethics that is but one approach to resolving potential conflicts between law and research ethics. PRE emphasises risks that have never materialized, and ignores jurisprudence on challenges to research confidentiality. When we examine what the courts have actually done with research-based claims of privilege, we find they clearly recognize and affirm researchers’ ethical obligations to maintain strict confidentiality and protect research participants. Ironically, the one exception – where the court ordered that information be disclosed – occurred precisely because the researchers had limited confidentiality. The passive approach PRE espouses leaves vital questions about what protecting confidentiality to the “full extent possible in law” means, and leaves the impression that academics should accept whatever limitations the courts may impose without participating in the courtroom dialogue determining where those limits are drawn. In contrast, we believe confidentiality is so important to the protection of research participants and the integrity of the research enterprise that it is worth fighting for. The “ethics-first” doctrine of “strict confidentiality” we describe adheres to the social sciences’ and humanities’ longstanding commitment to research confidentiality and duty to the research participant.     

Normativity,Guardianship, and the Elderly

The concept of guardianship, its associated principles, distinctions, and articulation of the legal needs of the elderly are introduced via a review of well-canvassed criticisms of Canadian guardianship legislation. Claims that the reformed legislation of Alberta, Quebec, and British Columbia represent models of adequate adult guardianship compared with traditional (archaic lunacy) law are examined. This paper argues that these renovated models exhibit a dubious normative advance over traditional legislation. Specifically, the normative presuppositions of the reformed legislation, such as, restriction to an autonomy-paternalism framework, and the norms of the liberal individual and state, obscure important issues in at least two key areas which challenge the models' assumptions; namely, assessment and legal competence and assessment and need. The development of guardianship laws and of social arrangements that are more responsive to the life experiences of the elderly requires critical re-articulation of the nature of individuals and their communities.     

Parent Alienation Syndrome: A Two Step Approach Toward a Solution

This paper deals with the steps involved in mediation before or while legal action and the courts intervene to force a solution by law to often tragic, acrimonious human interaction between former partners. Professionals such as qualified psychologists or psychiatrists should be able to offer a full course of mediation before partners begin divorce proceedings or decisions regarding the placement of children with one party or the other. A 10-year study involving 16 cases provides evidence that the initial use of mediation may well be superior to the initial use of the adversarial system on its own.     

The Economic, Political, Strategic, and Rhetorical Uses of Simple Constructive Dilemma in Legal Argument

The author argues that simple constructive dilemma is a valuable argument form for reasoning under relative conditions of uncertainty. When applied to legal argument this value of simple constructive dilemma is shown in its political, strategic, rhetorical, and especially economic, uses by lawyers and judges. After considering some examples of the use of the form by trial lawyers, the author gives examples of the more interesting use of the form by appellate courts. Research into the use of simple constructive dilemma by appellate courts helps us to understand how those courts distribute judicial resources. It also helps us to understand the political role of the appellate courts with respect to the doctrine of the separation of powers. Given some of the specific examples of legal reasoning used by the appellate courts presented in this article, and given the discussion of the doctrine of precedent, the article’s focus is on common law legal systems of the Anglo-American-type.     

Betreuungsrecht

Patient care comprises all measures for legally settling the affairs of persons unable to do so due to illness or physical handicap. Honourary or professional custodians appointed by the guardianship court [Vormundschaftsgericht; in the future: Betreuungsgericht, care court] perform the duties for their charges as determined by the court.  The care legislation passed in 1992 was revised several times, both structurally and fundamentally. With the latest changes, which were made on 18.06.2009 and will come into force on 01.09.2009, basics of the living will were incorporated into the law. Serious decisions as to whether medical assistance shall be given or withheld can thenceforth be made by the guardianship court.     

Investigative psychology and law: towards collaboration by focusing on evidence and inferential reasoning

Introducing a special issue of this journal, Youngs discussed the desirability of, but problems in realising, greater collaboration between psychology and the criminal investigation and trial processes. This paper acknowledges the value of investigative psychology's potential contribution but argues that the alleged incompatibilities, between psychology and law, are based upon too narrow a conception of law and legal action. A direct approach, with considerable potential for productive, principled, and practical research, already exists. It involves focusing on the evidence, assessing it along each of its three credentials, and identifying the nature of the inferential reasoning involved. This paper identifies a number of ways in which practical, inter‐disciplinary and collaboration could and should be developed to ensure that the courts receive quality evidence. It also argues that more attention should be paid to abductive inferential reasoning, both by researchers and courts. Copyright © 2011 John Wiley & Sons, Ltd.     

Predicting the present: expert testimony and civil commitment

This article uses the Supreme Court's decision in Daubert as an opportunity to address a chronic concern regarding the disparity between mental health law as officially enunciated and the practical application of that law. After Daubert, admissibility of expert evidence under the federal rules requires a qualified expert, a reliable basis for the testimony, and relevance to the legal issue. Ongoing psychological research pursues empirical data that expands the scope of psychological expertise and clarifies its limits. This article addresses the requirement of relevance by examining the logical relationship between the psychologist's actuarial and clinical expertise and the legal issues addressed by the court in civil commitment proceedings. Ideally, Daubert might stimulate a process of cooperative analysis in which psychologists and lawyers clarify the proper roles of psychological experts and of the courts with which those experts interact. This article begins that project by clarifying the legal determination required in civil commitment proceedings and by explicating the relationship between the responsibilities of experts and those of courts.     

Family, Community, and Motherhood: Caring for Fatherless Children in the Jewish Community of Thirteenth-Century Perpignan

This article investigates the guardianship of fatherless children (orphans) in one of the most important Jewish communities of the thirteenth-century realms of Aragon, the aljama of the town of Perpignan. After reviewing some ideals of Solomon ben Abraham ibn Adret of Barcelona, as expressed in his responsa, the article focuses on documents of practice. This documentary basis includes royal charters, Latin wills of Jewish testators, and 148 unedited transactions generated by eighteen panels of guardians between 1266 and 1286, described in an analytical table at the end of the article. The practical evidence reveals that guardians usually served as a group, panels comprised close relatives of the wards and men who were distinguished in their community through official service. Case studies expose the dynamics within these panels and establish that the orphans' widowed mother usually acted as the group's leader. A comparison with her Christian counterpart places the rights and responsibilities of the Jewish widowed mother guardian into relief. Although not autonomous, Jewish widowed guardians were highly effective caretakers of their fatherless children. The idealized view of the Jewish widow held by her medieval contemporaries as helpless and in need of special care from the men of her community enabled already capable widows to benefit from the financial aid of community leaders who otherwise might not have been so keen to foster these women's legal and financial agency.     

Child Safety in Australian Family Law: Responsibilities and Challenges for Social Science Experts in Domestic Violence Cases

Understanding the potentially adverse effects of exposure to domestic violence on children is increasing in the Western world. However, in Australian family law, there remain challenges in centralising the special needs of these children in cases before the family courts in the determination of their best interests. This article draws on some key findings of a small qualitative study to highlight and discuss some of the barriers that need to be overcome in order for social science experts to enhance the courts' capacity to protect child subjects of proceedings from possible future harm.     

Der schwierige Weg der Dritten Gewalt zwischen Freiheit und Sicherheit

The Federal Constitutional Court is searching for a legal instrument with which it can enforce the entitlement to freedom of those sentenced to lengthy prison terms when leniency is not shown due to the passivity of correctional facilities. Increasingly – and in contrast to the 1990s – judicial ministries urge correctional facilities to be conservative with respect to decisions on privileges due to the prioritization of aspects of public security (trial vs. expectation clauses). The courts responsible for the execution of civil judgment need successful experiences in the liberalization of the enforcement of sentences in order to give a positive legal prognosis. With its most recent decision, the Federal Constitutional Court affirmed its determination to aid the inmates’ entitlement to freedom if the penal system does not relax sentences. From a criminological perspective, it is already the case that the relevance of leniency tests for the creation of prognoses is questioned. A sentence enforcement chamber of the regional court in Aachen recently ordered the release of a prisoner after 35 years without any leniencies. Specialists’ appraisals were given priority over the judicial correctional facility’s judgment. Under consideration of the advantages and disadvantages of denied privileges the paper calls for stronger constitutional access for the courts responsible for the enforcement of sentences.     

The Use of Codified Law in the Rabbinic Courts of Frankfurt am Main on the Eve of the Enlightenment

During the Middle Ages and into the early modern period, rabbinic scholars of law in Franco-German communities had an at best ambivalent attitude toward the codification of Jewish law. Even Rabbi Joseph Caro’s Shul?an ˋArukh, first printed in Venice in 1565, was not well received by all. While students of the law from the lower ranks seem to have embraced the code, many leading rabbis—particularly those in sixteenth- and early seventeenth-century Poland—rejected it. In the course of the mid-seventeenth century, attitudes shifted, and Shul?an ˋArukh became the place for commentaries and learned discussions of the law. By the eighteenth century, rabbinic courts were using Shul?an ˋArukh as the basis of their legal decision making. This is confirmed, at least for Frankfurt am Main, through an examination of the legal diary of Rabbi Nathan Maas (d. 1794). In his diary, Maas not only summarized cases that he heard but also sometimes offered rationales for the court’s decisions. These précis make constant reference to Shul?an ˋArukh and its commentaries while never entering into an analysis of talmudic sources. This cannot have been because of a lack of ability, for Maas and his colleagues on the Frankfurt court were well-known scholars who published talmudic commentaries of substance. The use of a code, even by such authorities, may have been for utilitarian reasons, that is, to speed up the judicial process.     

Custodial suicide and class action remedies: Current obstacles and future directions

Custodial suicide is a foundational concern for correctional systems. The incarcerated population is at an increased risk for suicide as compared with people living in the community. Sufficient suicide prevention is a critical component of a constitutionally adequate system of correctional mental health care. The remedial phases of class action litigations have animated improvement in suicide prevention in many correctional systems across the United States. In the current climate, many legal obstacles make it more difficult for plaintiffs to prevail in such cases, but it is expected that advocates will find novel approaches in response to these legal hurdles, such as greater reliance on state law remedies, and will seek to expand the scope of potential actions in emerging areas such as immigration detention. Defendants and courts will, in turn, need to respond to these changes. This article explores the history of relevant litigations, and the legal obstacles currently faced by plaintiffs, as well as future directions the authors consider will likely be taken. Practical issues such as appropriate measurement of improvement in the area of suicide prevention are also explored.     

Scientia Iuris - An Unsolved Philosophical Problem

Legal dogmatics in Continental European law (scientia iuris, Rechtswissenschaft) consists of professional legal writings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership. The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal dogmatics aims at obtaining a system of law that is both internally coherent and harmonized with its background in morality and (political) philosophy. Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason they can be a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: empirical, morally-political, epistemological, logical, and ontological. The position taken in this article is to answer such criticism by mutually adjusting philosophy and the practices of the law.     

Adolescents' competency to make informed birth control and pregnancy decisions: an interface for psychology and the law

This paper explores the interface between psychology and the law as it relates to the informed consent doctrine and adolescents' legal competency to make informed decisions regarding birth control and pregnancy terminations. The complicated developmental, clinical, ethical, and legal issues have stimulated the courts to express their need for empirical evidence on the issue. To date, no such investigation has been reported in the literature. A research strategy is proposed which could address the courts' need for substantive data upon which to base legal decisions regarding adolescents' competency to reach reproductive decisions.     

Punitive legal approaches to the problem of prenatal drug exposure

Legislatures and courts have responded prematurely to the problem of prenatal drug exposure through a variety of criminal and civil legal sanctions to deter drug use and to protect fetal health. A review of the case law demonstrates that significant statutory and constitutional difficulties limit the effectiveness of these sanctions and ultimately inhibit their applicability. These constraints require that any governmental intervention through the courts be based upon individual judicial findings of imminent harm to the child and maternal unfitness in neglect proceedings.     

Law and LGBQ-Parent Families

This paper addresses how the law affects LGBQ-parent families. We first outline the legal landscape that LGBQ parents face in the US, underscoring that it varies drastically by state and creates inequity for families. Reviewing existing social science research, we then address how the law affects three processes for LGBQ people: desiring parenthood, becoming a parent, and experiencing parenthood. Our review indicates that the law affects if and how LGBQ people become parents. LGBQ people consider the law as they make decisions about whether to pursue adoption, donor insemination, or surrogacy and often view the latter two pathways as the most legally secure. Further, the law continues to be salient for LGBQ parents throughout parenthood and affects family well-being. Specifically, legal inequity diminishes parent’s well-being, the relationship among couples who are parenting, and parents’ ability to effectively advocate for their children in institutional settings like healthcare contexts. Finally, we address directions for future research for scholars interested in the law, family processes and outcomes, and LGBQ families.     

BLAME,MORAL STANDING AND THE LEGITIMACY OF THE CRIMINAL TRIAL

I begin by discussing the ways in which a would‐be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her (to call her to account for her wrongdoing). This provides the basis for an examination of a particular kind of ‘bar to trial’ in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the state or its officials. The examination of this often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic.