Showing papers on "Judicial opinion published in 1999"

Predatory Pricing: Strategic Theory and Legal Policy

Abstract: This paper proposes a new legal rule on predatory pricing based on strategic analysis. The Supreme Court's decision in Brooke with its emphasis on closely analyzing the scheme of predation and recoupment calls for such an analysis. At the same time economic development over the last 20 years of a rigorous analysis of predatory pricing provides the tools required to achieve a more effective legal policy. Economics can now explain when predation can be rational, or in Brooke's terms when it can enable profitable recoupment, casting new light on earlier examples of predatory pricing. The further challenge for legal analysis is to develop workable legal rules to guide enforcement agency policy and judicial decisions. To accomplish this we propose a structured rule of reason, including a fully specified efficiencies defense. Under such an approach enforcement would focus on cases where market structure and conduct makes predation plausible and where anticompetitive effects have occurred, or are dangerously probable. Equally important, the finding of predation would be subject to an efficiencies justification where below-cost pricing is necessary to achieve significant efficiencies, including dynamic efficiencies.

Court Performance around the World: A Comparative Perspective

Abstract: Increasing importance has been placed on an effective and efficient judiciary by governments and civil society. However, apart from decisions that they render, little is known about court performance trends. The judicial reform experiences so far have made it clear that more information is needed to review and compare trends among different countries. This paper addresses the efficiency aspect of court performance, as it can be quantitatively measured using objective data. In addition, congestion, cost, and delay are some of the problems most often complained about by the public. This paper reviews data collected from eleven countries on three continents and provides a description of performance. The main areas of comparison include the number of cases filed, resolved, and pending per judge, the clearance and congestion rates, time to resolve a case, the number of judges, and the cost of a case. The paper also reviews the recent trends within each country and discusses some possible reforms.

Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions

Abstract: Preface. Introduction. 1. Research Into Legal Argumentation. 2. A Survey of Approaches and Topics. 3. The Logical Approach. 4. Toulmin's Argumentation Model. 5. Perelman's New Rhetoric. 6. Habermas' Theory of Communicative Rationality. 7. MacCormick's Theory of the Justification of Legal Decisions. 8. Alexy's Procedural Theory of Legal Argumentation. 9. Aarnio's Theory of the Justification of Legal Interpretations. 10. Peczenik's Theory of Transformations in the Law. 11. The Pragma-Dialectical Theory of Legal Argumentation in the Context of a Critical Discussion. 12. Towards a Theory of Legal Argumentaton in the Context of a Critical Discussion. Bibliography. Author Index. Subject Index.

A hybrid rule --- neural approach for the automation of legal reasoning in the discretionary domain of family law in Australia

Abstract: Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. We demonstrate that systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results.

Prostitution control in America: Rethinking public policy

Abstract: In the past two decades there has been little critical examination of the prevailing methods of controlling prostitution in the United States. This article examines selected problems in the control of prostitution in the United States and critically assesses three major alternatives to the prevailing policy of criminalization. Alternative approaches are evaluated using the criteria of public preferences, efficient use of criminal justice resources, and harm reduction. One policy, involving a dualistic approach, is found to be superior in satisfying these criteria.

The Rule of Law and the Litigation Process: the Paradox of Losing by Winning

Abstract: This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law.

Judicial Independence: Some Evidence from the English Court of Appeal

Abstract: This paper is concerned with the existence or otherwise of conscious political interference with judicial decision taking. We produce new evidence from the English Court of Appeal to shed some light on the theoretical debate on judicial independence. This evidence rests on the fact that the procedure for promoting judges from the Court of Appeal to the House of Lords is in principle under political control: the lord chancellor, who has a key role in the promotion of judges, is a member of the cabinet and as such a political appointee. The data relate to public law decisions made by judges in the Court of Appeal over the period 1951–86. We use a competing risks survival model to establish whether the record of individual judges in deciding for or against the government was a factor that determined their promotion chances, controlling for the quality of their decision making.

The Rule of Law and the Litigation Process: The Paradox of Losing by Winning

Abstract: This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law

Brennan and Democracy

Abstract: In "Brennan and Democracy," a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.

Judicial rhetoric, government lawyers, and human rights : The case of the Israeli High Court of Justice during the Intifada

Abstract: Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation Previous studies focused on judicial policies as reflected in judicial declarations and decisions that were fully disposed by judges and officially published I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlement: more favorable to minorities than official decisions Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy This argument is demonstrated in a case study of the Israeli High Court of justice during the Palestinian Intifada It is an accepted postulate that courts are important social institutions having a broad influence on political and social processes Nevertheless, the techniques by which judicial influence is exerted have yet to be fully explored by social scientists Declarations included in judicial decisions may, in some cases, stir a process of social change Likewise, the outcomes of judicial proceedings, whether in an individual case or a series of related cases, may have wide effects on political institutions judicial rhetoric and formal court orders are not, however, the only ways by which courts may influence the social environment Other, albeit less formal, methods may be used by judges to achieve social goals In particular, courts may pressure the parties to litigation to bring about an out-of-court settlement and thus avoid the need for a final judicial disposition judges may also express their opinion on a certain point of law or policy, either in court during the course of litigation or via other channels of communication, and thus affect the motivation or the persistence of certain parties to pursue legal proceedings (Mather 1995; Atleson 1989) The role of informal judicial techniques within the process of judicial intervention in political and administrative processes is the focus of this article I argue that in some cases, in order to evaluate the role courts play in society, it is not enough to study the open rhetoric and the final orders given by courts Rather, one must also take into account informal techniques used by courts, as well as the relationship between those techniques and the formal methods of influence, so as to obtain the full picture of the courts' involvement within a particular field of social activity This is particularly true when courts are required to intervene in sensitive political problems, such as in the protection of human rights in emergencies Constitutional theorists maintain that courts are required to defend individual rights, particularly those rights of minorities or disadvantaged groups in the relevant political community Courts are also expected to refrain from excessive interference in decisionmaking by the other two branches of government Both these themes derived from the assumption that courts, unlike the legislature and the executive, are not representative institutions They are not required to reflect in their decisions the popular preferences of the majority Rather, they are expected to do the reverse: to confront popular decisions that endanger human rights (Bickel 1962; Ely 1980; Ackerman 1984) The "success" of courts in maintaining their institutional autonomy, according to this line of thinking, is revealed by the ability to withstand political pressures and perform their countermajoritarian role (Barzilai 1997) To what extent, however, do courts fulfill their function of protecting individual rights against governmental actions? …

Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Litigation

Abstract: While recent research has improved dramatically our understanding of appellate judicial behavior in constitutional and criminal law, we know comparatively little about the majority of the decisions made by the federal judiciary: civil case decisions in federal district courts. Moreover, by relying upon published cases exclusively, this research may misrepresent those forces influencing the majority of judicial decisions. We address these shortcomings by outlining an integrated model of judicial policymaking and using this model to explain civil penalty severity in all environmental protection cases (published and unpublished) concluded in federal district courts from 1974-91. Additive and interactive heteroskedastic unit effect regression models demonstrate that penalty severity in environmental cases is affected by case and defendant characteristics, judicial policy preferences, the surrounding political context, and federal institutional actors. These models also demonstrate that political consideration...

Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals

Abstract: In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These findings suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal. Stratification within the private legal profession in the United States has been well documented (Abel 1988; Heinz and Laumann 1994). In general, scholars have divided the legal profession into two groups or hemispheres, elite lawyers and ordinary lawyers. Elite lawyers belong to large firms, represent large corporations and wealthy individuals, and have high incomes on average. In contrast, ordinary lawyers practice alone or in smaller firms, represent one-shot individual clients, and have lower incomes on average (Abel 1988). The higher compensation and prestige associated with employment in elite law firms suggests that this stratification is related to the quality of representation, which may ultimately be related to the likelihood of success in litigation. This article evaluates this impression by assessing the impact of attorney expertise in appellate litigation. Our analysis focuses on products liability cases in the U.S. Courts of Appeals. In addition to providing a sufficient number of cases that present roughly comparable fact patterns and issues, this subset of civil appeals provides a particularly appropriate context for analyzing differences in counsels' expertise. In the typical products liability case, an individual "one-shot" plaintiff sues one or more corporate "repeat player" defendants. Defendants in these cases often have the benefit of previous experience in similar litigation, in-house counsel to provide guidance, and the financial resources necessary to retain additional expert representation. They also have the incentive to do so; the stakes in products liability lawsuits can be very high in both financial and reputational terms (Viscusi 1991). Indeed, an adverse judgment in a products liability case, whether at trial or on appeal, may influence subsequent product sales or inform other injured parties that a case is worth bringing (Priest & Klein 1984; Viscusi 1991). In contrast, plaintiffs in products liability lawsuits are often one-shot players interested solely in the outcome of their case. Unlike large corporate defendants, plaintiffs do not have the resources to shop for expert counsel. Instead, they rely on attorneys who will represent them on a contingency fee basis, rather than an hourly rate (Gross & Syverud 1996). Although the high stakes of products liability litigation has created a financial incentive for many plaintiffs' lawyers and firms to orient their practice in this area, individual plaintiffs may not be capable of making informed judgments when selecting firms or attorneys best suited to represent their interests. …

The Success of Judicial Review

Abstract: Comparative law as practiced by academic lawyers is typically a sterile taxonomy saved by a pragmatic experimentalism. The legal doctrines of two countries are exposed through a careful sifting of statutes, judicial opinions and scholarly commentary. Similarities and differences are noted. For most areas of law in most countries, or at least most post-tribal or post-feudal countries, similarities overwhelm differences. Noticing the dominance of similarity, some authors may then seek the grail of universal legal principles derived from a universal moral or natural or categorical law, or international human rights, or the holy progress of the law, to meet universal human needs. To the less sanguine, the dominant similarities point only to the human concerns for security of person, mine and thine, and family that are indeed universal but are not necessarily moral, progressive or unifying. Others, more struck by the legal differences they observe, turn to adumbrating a global law divided into a number of families: common, civil, Islamic, Socialist, Confucian.

Jeremy Bentham and the Public Opinion Tribunal

Abstract: Well-known as the father of utilitarian philosophy, Jeremy Bentham (1748-1832) is less well-known as a pioneer theorist of public opinion. His work on the subject in the early nineteenth century was the first to tolerate the indeterminacy of public opinion in a liberal democracy. Where previous theorists had tried to specify the content of a "true" or "correct" public opinion, and most did so by imposing conditions on membership in "the public," Bentham argued that the public opinion necessary in a representative democracy must be unfettered and inclusive. For Bentham, the Public Opinion Tribunal, constantly judging government, was the most important social institution in preventing "misrule." As a liberal, Bentham championed public opinion as inherently progressive: he thought it would eventually coincide with his utilitarian ethical standard, the greatest happiness of the greatest number. Its operation, however, depends on the freedom of the press to investigate and publicize government actions in order to facilitate a form of public debate mediated through newspapers. Considered broadly, Bentham's public opinion has much in common with the arguments of much recent empirical work on the subject, such as Page and Shapiro's The Rational Public, Stimson's Moods, Cycles, and Swings, Popkin's The Reasoning Voter, and Zaller's The Nature and Origins of Mass Opinion. The theory is, however, dated by its inability to adequately consider some of the problems that occupy modern theorists of public opinion: deliberation, rational ignorance, media vacuity or manipulation, and the tyranny of the majority. For British observers in the early nineteenth century, the United States turned out to be a massive natural experiment in politics. Even Jeremy Bentham, whose confidence in his great projects was never in doubt, beFRED CUTLER is a doctoral candidate in political science at the University of Michigan and research associate at the Centre for the Study of Democracy, Queen's University, Canada. The author would like to thank Laura Moss, J. A. W. Gunn, and Kim Smith for comments that strengthened the article immeasurably; Maurice Cutler and Bob Burge for computing support; and George Perlin for providing a home for this research. This work was generously supported by a Social Sciences and Humanities Research Council of Canada doctoral fellowship and by a Donald Matheson Springer fellowship from the University of Toronto. Public Opinion Quarterly Volume 63:321-346 ? 1999 by the American Association for Public Opinion Research All rights reserved. 0033-362X/1999/6303-0001$02.50 This content downloaded from 157.55.39.215 on Wed, 31 Aug 2016 05:15:33 UTC All use subject to http://about.jstor.org/terms

A Political Regimes Approach to the Analysis of Legal Decisions

Abstract: The public law field is in the midst of the most profound debate over research paradigms since the 1950s when behavioralism eclipsed traditional legal-institutional scholarship. The behavioralist "old guard" is under assault by "new institutional" challengers, and within the new institutionalism is a debate between positive theory institutionalists and interpretive institutionalists over how best to conceptualize institutions and their influence on judicial decision making. The purpose of this article is to explain how political scientists who study the law and the courts have come to think about their subjects and methods of inquiry, and to explain why a proposition that seems patently obvious and conventional to many strikes us as fresh and innovative. We consider the limits to the predominant behavioralist approach to studying the courts and judicial decision making, and examine how the "new institutionalism" departs from that as well as from more traditional institutional approaches. More generally we...

Patterns of Injustice: Police Brutality in the Courts

Abstract: This article is concerned, most generally, with the judicial tendency to anecdotalize governmental misconduct - to view instances of misconduct as isolated rather than systemic More specifically, it is concerned with the impact of this phenomenon in the context of systemic police brutality It argues that police brutality is permitted to flourish by a series of interlocking institutions that characterize brutal acts as isolated and anecdotal, and it focuses particularly on the courts' role in this acquiescence The courts permit and even implicitly condone police brutality through a number of substantive and procedural doctrines that fragment patterns of misconduct The article argues that although it is important to study each of these doctrines individually, the tendency to anecdotalize police misconduct has more basic explanations that transcend particular doctrinal devices Part I examines the phenomenon of police brutality, with particular attention to the ways in which patterns are masked Section A takes a detailed look at one pocket in which police brutality and even torture have long thrived: Chicago's Area Two Violent Crimes Unit Section B asks whether the story told about Area Two is itself anecdotal, or is representative of a larger pattern, and describes more generally the attributes of police brutality as practiced in the United States, with attention to, among others, the Louima and Diallo cases in New York Part II seeks to understand the pattern of fragmentation that characterizes the judicial reaction to police brutality Section A suggests that the literary notion of anecdote, with its concerns about irrelevant detail, the linkages among seemingly disparate acts, and the problem of judging representativeness, can help us think about the patterns of governmental misconduct and why they are so often ancedotalized It suggests that judicial decisions about what details are connected, relevant or representative are not merely mechanical, but are informed by cultural, social and political assumptions Section B posits several such assumptions that may lead judges to view patterns of governmental misconduct as a series of disconnected events These include: the assumption that the status quo is coherent and just; the use of selective empathy; the fear of destabilization and chaos; the need for individual stories of motive, fault and blame; reliance on the common law paradigm; and the preference for judicial insulation The article illustrates the effect of these assumptions in the police brutality context

Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama

Abstract: This article presents the results of a study of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her primary source or campaign funds. Justices whose election campaigns are funded by plaintiffs' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. The correlation holds not just with regard to ideologically-charged doctrines, like unconscionability, but also with seemingly bland questions of contract formation, interpretation and waiver.

From Roberts to Plessy: Educational Segregation and the "Separate but Equal" Doctrine

Abstract: The segregation era was a contradictory period in American legal history. For almost one hundred years, courts had the necessary language, the Fourteenth Amendment, needed to outlaw the institutional separation of African-Americans from European-Americans. Yet, the nation had to wait until 1954 when the U.S. Supreme Court in Brown v. Board of Education ruled that segregation deprived African-Americans of the equal protection of the laws, which had been guaranteed by the language of the Fourteenth Amendment.' In this decision, the separation of the races by law in public education was ruled to be unconstitutional. Education also served as the foundation of segregation as rulings on the legality of separate schools for African-Americans in the 19th Century resulted in the legal argument that was used to justify segregation: "separate but equal". Leonard Levy and Harlan Phillips in their influential article "The Roberts Case: Source of the 'Separate but Equal' Doctrine" wrote that the first judicial opinion that used the "separate but equal" doctrine was Roberts v. City of Boston in 1849. This decision by the Massachusetts Supreme Court upheld segregated public education in Boston, Massachusetts and its reasoning was utilized by many state courts to uphold educational segregation. Moreover, Roberts was used as the leading precedent by the Plessy majority to nationally institutionalize "separate but equal".2 Despite the influence of their argument, Levy and Phillips never demonstrated exactly how state courts utilized and modified the Roberts ruling nor did they focus on how the Fourteenth Amendment affected the logic used in the "separate but equal" doctrine. This study attempts to fill that void. Boston's segregated school system was originally not established by whites, but rather by the growing number of free African-Americans settling in the city. An independent school for African-Americans was first established in 1800. The Boston Public School Committee annexed the institution in 1812 and began to assign every African-American grammar school-aged child to the school.3 Another all-black school was built in 1835.

Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern

Abstract: Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven-year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

Patterns of Injustice: Police Brutality in the Courts

Abstract: This article is concerned, most generally, with the judicial tendency to anecdotalize governmental misconduct - to view instances of misconduct as isolated rather than systemic. More specifically, it is concerned with the impact of this phenomenon in the context of systemic police brutality. It argues that police brutality is permitted to flourish by a series of interlocking institutions that characterize brutal acts as isolated and anecdotal, and it focuses particularly on the courts' role in this acquiescence. The courts permit and even implicitly condone police brutality through a number of substantive and procedural doctrines that fragment patterns of misconduct. The article argues that although it is important to study each of these doctrines individually, the tendency to anecdotalize police misconduct has more basic explanations that transcend particular doctrinal devices. Part I examines the phenomenon of police brutality, with particular attention to the ways in which patterns are masked. Section A takes a detailed look at one pocket in which police brutality and even torture have long thrived: Chicago's Area Two Violent Crimes Unit. Section B asks whether the story told about Area Two is itself anecdotal, or is representative of a larger pattern, and describes more generally the attributes of police brutality as practiced in the United States, with attention to, among others, the Louima and Diallo cases in New York. Part II seeks to understand the pattern of fragmentation that characterizes the judicial reaction to police brutality. Section A suggests that the literary notion of anecdote, with its concerns about irrelevant detail, the linkages among seemingly disparate acts, and the problem of judging representativeness, can help us think about the patterns of governmental misconduct and why they are so often ancedotalized. It suggests that judicial decisions about what details are connected, relevant or representative are not merely mechanical, but are informed by cultural, social and political assumptions. Section B posits several such assumptions that may lead judges to view patterns of governmental misconduct as a series of disconnected events. These include: the assumption that the status quo is coherent and just; the use of selective empathy; the fear of destabilization and chaos; the need for individual stories of motive, fault and blame; reliance on the common law paradigm; and the preference for judicial insulation. The article illustrates the effect of these assumptions in the police brutality context.

Geriatrics and the law : understanding patient rights and professional responsibilities

Abstract: The updated Third Edition of "Geriatrics and the Law" by the leading scholar in law and old age belongs on the desk of every hospital and long-term care administrator, Director of Nursing, and Medical Director. It is the most comprehensive volume available on the topic. The book provides clearly written legal and ethical principles and their implications and applications."--Elias S. Cohen, JD, Executive Director, Community Services Systems, Inc. Significant changes in the law are affecting patients' rights and professionals' responsibilities in providing clinical services to the elderly. This edition of Kapp's successful text continues to inform and sensitize health care professionals about the legal issues, and offers practical advice and guidance to practitioners in a variety of disciplines. The text has been thoroughly updated and, where appropriate, expanded. Topics woven into each chapter include: implications of the relevant statutes, regulations, judicial opinions, private guidelines, and discussion of new laws. This practical book is a valuable and useful resource for practitioners, health care students, and educators. It contains extensive references and a helpful Appendix of Resources.

The Honest Politician's Guide to Juvenile Justice in the Twenty-First Century

Abstract: Within the past three decades, judicial decisions and legal changes have transformed the juvenile court from a nominally rehabilitative social welfare agency into a scaled-down, second-class criminal court that provides young offenders with neither therapy nor justice. The migration of African Americans from the rural South to the urban North that began three-quarters of a century ago, the macrostructural transformation of American cities and the economy over the past quarter of a century, and the current linkages in the popular and political culture between race and serious youth crime provide the impetus for get-tough policies to crack down on juveniles. The procedural and substantive convergence between juvenile and criminal courts has occurred because juvenile courts attempt to combine social welfare and criminal social control in one agency. If states uncouple social welfare from social control, then they can try all of fenders in one integrated criminal justice system. But states must formally recog...

Lesion of the will: medical resolve and criminal responsibility in Victorian Insanity Trials

Abstract: Analysis of courtroom testimony heard in London's Central Criminal Court in the 10 years following the McNaughtan acquittal (1843) reveals the effort of medical witnesses to establish a distinctive and essential voice in the Victorian insanity trial. Three trials that illustrate this effort are examined for the manner in which practitioners of mental medicine distinguished their opinion from the layperson's fact and, in the process, engaged pivotal issues for the determination of criminal responsibility. Their testimony and the attorneys' questions that elicited it suggest that whatever reliance the judiciary might have placed on the McNaughtan Rules to confine testimony to the defendant's capacity to "know fight from wrong," medical witnesses devised ways to circumvent and indeed dismiss the relevance of this particular inquiry. he difference between asking a witness, "Did the boy not tell you something about his grandfather?" and "Do you consider when he did this, he did not know that poisoning his grandfather was a wrong act?" is the difference between asking a witness to report a fact and asking him to deliver an opinion. Although all witnesses in Anglo-American jurisprudence are ostensibly limited to reporting only their direct sensory perceptions to the court, there exists a class of witnesses entitled to draw inferences, form opinions, and advise the jury in matters thought to be beyond the ken of the ordinary citizen. The only skill required to answer the first question is the possession of auditory sensation: What was it the witness actually heard?1 The second question asks for the most subtle of judgments: an opinion that the defendant could commit an atrocious crime without knowing that committing it would be wrong. What does the phrasing of this question-and indeed the fact that it was asked at all-suggest about the common law's willingness to entertain a body of opinion that claimed unique insight into the mind of the mad? Both questions cited above are found in an 1848 insanity trial heard at the Old Bailey, London's Central Criminal Court. That a self-proclaimed expert in mental medicine appeared in court to answer questions about mental derangement was not a novel occurrence. Physicians, surgeons, and apothecaries had been appearing in English courts to comment on the medical features of insanity since at least 1760. And it was hardly unusual for the defendant's mental derangement to be associated with physical pathology, as would be the case with the youthful poisoner. Neighbors, lovers, and co-workers of the allegedly insane routinely commented on physiological anomalies ranging from head wounds to fevers, war wounds to riding accidents, head sores to fits. What would set mid-Victorian insanity trials apart was the medical witness's venturing into the moral consequence of such physical ailments. In the case cited above, the young defendant's ringworm had purportedly penetrated his brain, not only driving him mad but "prevent[ing] him from distinguishing right from wrong." To be sure, laypersons were in the habit of associating physical anomalies with aberrant behavior, but they confined their testimony to the presence of insanity. The emerging specialist in mental medicine, in contrast, endeavored to construct a more ambitious connection, one that speculated on the implications of physical and moral lesions for the mental contemplation of a crime. This effort to delve into the mental consequence of disease was one way the medical specialist distinguished his testimony from the layperson's. A second, and more consequential, undertaking was his challenge of the juror's belief that there was anything self-evident in discovering madness. By questioning the conventional signs and assumed meanings of bizarre action, the medical witness presented a construction of nonintentional behavior that would eventually bring him into direct conflict with the law's criterion for assigning criminal responsibility. …

The potential conflict between clinical and judicial decision making heuristics.

Abstract: The Gudjonsson Suggestibility Scale (GSS; Gudjonsson, 1984) was introduced as a tool for identifying suspects who are at risk of making false confessions. High GSS-scores indicate a greater risk of making false confessions. Recently, some authors have claimed that low GSS-scores can be used to support the credibility of recovered memories. This new application broadens the use of the GSS in two ways. First, low GSS-scores are considered to possess diagnostic value. Second, the GSS is advocated as a practical tool in clinical settings. This article critically evaluates such a clinical application of the GSS. Our main argument has to do with the incompatibility of basic clinical and judicial decision making heuristics. Psychotherapists, and other medical professionals, should base their decisions on different parameters than judicial professionals. Compared to judicial heuristics, clinical heuristics can be characterized as more empathetic, less critical, and less conservative. Given these differences, clinical conclusions (including those about the accuracy of recovered memories) cannot be easily translated into judicial decisions. If they do enter the judicial domain, these conclusions may lead to dubious forensic decisions.

My Philosophy of Law: The Institutionalisation of Reason

Abstract: Every philosophy of law is implicitly or explicitly an expression of a concept of law. All concepts of law derive from the interpretation and weighing of three elements: (1) due enactment, (2) social efficacy, and (3) substantial correctness1. Somebody who solely concentrates on due enactment and social efficacy, not giving any weight to substantial correctness in a defmition of law advocates a positivist concept of law. Hans Kelsen’s theory is an example for such a concept. His famous sentence “Therefore, any content whatever can be law”2 expresses this clearly. The most extreme antipode to legal positivism is held by those who define the law exclusively by its substantial correctness. Such a pure notion of natural law is not interesting for somebody who wants to recognise, follow, interpret, and apply the valid law. The decisive question concerning the adequacy of a concept of law is therefore not whether substantial correctness rather than due enactment and social efficacy should define the law, but instead whether substantial correctness should do so in addition.

Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes

Abstract: Formalists and antiformalists continue to debate the utility of using legislative history and current social values to interpret statutes. Lost in the debate, however, is a clear model of how judges actually make decisions. Rather than focusing on complex problems presented by actual judicial decisions, formalists and antiformalists concentrate on stylized examples of simple statutes.In this Article, Professors Adams and Farber construct a more functional model of judicial decisionmaking by focusing on complex problems. They use cognitive psychological research on expert reasoning and techniques from an emerging area in the field of artificial intelligence, fuzzy logic, to construct their model. To probe the complex interactions between judicial interpretation, the business and legal communities, and the legislature, the authors apply their model to two important bankruptcy cases written by prominent formalist judges.Professors Adams and Farber demonstrate how cognitive psychology and fuzzy logic can reveal the reasoning processes that both formalist and antiformalist judges use to interpret complex statutes. To apply formalist rules, judges need to recognize the aspects of a case that trigger relevant rules. Cognitive psychologists have researched expert reasoning using this type of diagnostic process. Once the judge identifies the appropriate rules, she will often find they point in conflicting directions. Fuzzy logic provides a model of how to analyze such conflicts.Next, Professors Adams and Farber consider how these models of judicial decisionmaking inform efforts to improve statutory interpretation of complex statutes. They reason that expert decisionmaking builds on pattern recognition skills and fuzzy maps, both the result of intensive repeated experience. The authors explain that cases involving complex statutory interpretation frequently involve competing considerations, and that the implicit understandings of field "insiders" tend to be entrenched and difficult to displace. Consequently, Professors Adams and Farber argue that judges in specialty courts, such as the Bankruptcy Courts, are probably in a better position than generalist appellate judges to interpret complex statutes. Generalist judges should approach complex statutory issues with a strong degree of deference to the "local culture" of the field.Professors Adams and Farber conclude the Article with speculation on how fuzzy logic could be used in a more quantitative way to model legal problems. They note that computer modeling may ultimately provide insight into the subtle process of judicial practical reasoning, moving away from the false dichotomy often drawn between formalist and antiformalist approaches to practical judicial decisionmaking.

Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes

Abstract: Formalists and antiformalists continue to debate the utility of using legislative history and current social values to interpret statutes. Lost in the debate, however, is a clear model of how judges actually make decisions. Rather than focusing on complex problems presented by actual judicial decisions, formalists and antiformalists concentrate on stylized examples of simple statutes.In this Article, Professors Adams and Farber construct a more functional model of judicial decisionmaking by focusing on complex problems. They use cognitive psychological research on expert reasoning and techniques from an emerging area in the field of artificial intelligence, fuzzy logic, to construct their model. To probe the complex interactions between judicial interpretation, the business and legal communities, and the legislature, the authors apply their model to two important bankruptcy cases written by prominent formalist judges.Professors Adams and Farber demonstrate how cognitive psychology and fuzzy logic can reveal the reasoning processes that both formalist and antiformalist judges use to interpret complex statutes. To apply formalist rules, judges need to recognize the aspects of a case that trigger relevant rules. Cognitive psychologists have researched expert reasoning using this type of diagnostic process. Once the judge identifies the appropriate rules, she will often find they point in conflicting directions. Fuzzy logic provides a model of how to analyze such conflicts.Next, Professors Adams and Farber consider how these models of judicial decisionmaking inform efforts to improve statutory interpretation of complex statutes. They reason that expert decisionmaking builds on pattern recognition skills and fuzzy maps, both the result of intensive repeated experience. The authors explain that cases involving complex statutory interpretation frequently involve competing considerations, and that the implicit understandings of field "insiders" tend to be entrenched and difficult to displace. Consequently, Professors Adams and Farber argue that judges in specialty courts, such as the Bankruptcy Courts, are probably in a better position than generalist appellate judges to interpret complex statutes. Generalist judges should approach complex statutory issues with a strong degree of deference to the "local culture" of the field.Professors Adams and Farber conclude the Article with speculation on how fuzzy logic could be used in a more quantitative way to model legal problems. They note that computer modeling may ultimately provide insight into the subtle process of judicial practical reasoning, moving away from the false dichotomy often drawn between formalist and antiformalist approaches to practical judicial decisionmaking.

The Scope of the Public Interest Defence in Actions for Breach of Confidence

Abstract: Judicial opinion, at least in Australia, on the scope of the so-called 'public interest' defence to actions for breach of confidence is divided. Proponents of a broad view of the defence assert that there exists a separate public interest defence based upon freedom of the press and the public's right to know the truth. On the other hand, there is some judicial support for the proposition that the public interest defence should encompass no more than an application of the general equitable defence of clean hands, or alternatively, that information which exposes danger or harm to the public should not be classified as confidential in any case. This paper examines these differing views and the tests required to establish that disclosure is justified in the public interest.