司法构造超越民事诉讼外文翻译.docx

1、司法构造超越民事诉讼外文翻译外文翻译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, 2

2、006;U.S. Courts, 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

3、 & Sarat, 19801981; 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 wheth

4、er it emanates 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

5、resolution. Yet 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 matt

6、ers beyo -nd the 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 reso

7、lved (see Felstiner, 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 conceptualiz

8、ations of justice. 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,

9、 distributive 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

10、 considered fair 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 ac

11、ts. Finally, retributive 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 cons

12、tructs as well 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

13、 Litigation 259 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

14、 most. In a given 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 a

15、rgued that people 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 af

16、fect distribution 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 legislative decisions that regulate courtroom outcomes or allocate resources directly. Distributive justice principles would be particularly valuable t