American Bar Foundation Research Journal 

About: American Bar Foundation Research Journal is an academic journal. The journal publishes majorly in the area(s): Legal profession & Supreme court. It has an ISSN identifier of 0361-9486. Over the lifetime, 190 publications have been published receiving 1895 citations.

The Checking Value in First Amendment Theory

Abstract: The author examines the sources and premises of the idea that free expression has value in part because of the function it performs in checking the abuse of official power (the “checking value”) and explores how this checking value difyers from those values that have dominated First Amendment analysis since 1919. In addition, the author traces in some detail the uneven influence the checking value has had recently in three areas of First Amendment adjudication: civil actions f o r defamution; disputes arising from efforts by journalists to protect or establish relationships with news sources; and claims b y nonjournalists to a constitutional or statutory right to communicate directly to the public over major print or broadcast outlets. The author argues that the checking value must receive open, systematic consideration if it is to play a consistent part in adjudication and speculates on how such consideration of the checking value might help one think about a wide range of additional First Amendment questions.

The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation

Abstract: The preponderance-of-the-evidence standard usually is understood to mean that the plaintiff must show that the probability that the defendant is in fact liable exceeds 1/2. Several commentators and at least one court have suggested that in some situations it may be preferable to make each defendant pay plaintiff's damages discounted by the probability that the defendant in question is in fact liable. This article analyzes these and other decision rules from the standpoint of statistical decision theory. It argues that in most cases involving only one potential defendant, the conventional interpretation of the preponderance standard is appropriate, but it notes an important exception. The article also considers cases involving many defendants, only one of whom could have caused the injury to plaintiff. It argues that ordinarily the single defendant most likely to have been responsible should be liable for all the damages, even when the probability associated with this defendant is less than 1/2. At the same time, it identifies certain multiple-defendant cases in which the rule that weights each defendant's damages by the probability of that defendant's liability should apply.

Examining Local Legal Culture

Abstract: This study examines the contours of local legal culture in four criminal trial courts. Local legal culture is conceptualized as common practitioner norms governing case handling and participant behavior in a court. A questionnaire consisting of descriptions of 12 hypothetical cases, together with questions regarding the appropriate mode of disposition, disposition speed, and sentence, was completed by judges, defense attorneys, and prosecutors in each of the courts. Responses on these questions are compared across courts and various types of practitioners. The responses are also compared with analogous data on actual case dispositions in each of the courts. The major substantive conclusion of the research is that the existence of local legal culture—if defined as attitudinal agreement on proper disposition of criminal cases—is most apparent on issues of a procedural nature: disposition time and the necessity of a trial to resolve issues in the case. On these procedural dimensions there is general agreement among the lawyers and judges practicing in a court; furthermore, the contours of this agreement tend to differ across courts and to be related to actual practices (as illustrated by the samples of closed cases). On issues relating more to the substance of the cases—the appropriateness of plea concessions and the proper sentence—much more intracourt disagreement emerges. This disagreement is consistent with traditional notions of the roles of opposing counsel in an adversary setting, suggesting that at least attitudinal adversariness is present in the courts examined.

Medical Malpractice: The Case for Contract

Abstract: Medical malpractice, a subject that once languished in comparative obscurity, has in recent years become one of the most hotly debated topics of our time. The reasons for its surge to prominence, not only in medical and legal circles but also in the public eye, are not difficult to detect. Vast increases, slow at first but more rapid of late, have been evident in the number of medical malpractice actions; in the number of actions in which the plaintiffs have recovered; in the average size of their recovery; and, as a consequence, in the cost of medical malpractice insurance. In and of itself the unmistakable trend in the figures need not be a source of public concern. We could simply wash our hands of the whole affair and indulge in the happy assumption that the matter eventually will sort itself out in the marketplace. The cost of malpractice awards could be treated as just another cost of providing medical care that will, in the long run at least, be passed on to either taxpayer or consumer.