Legal Theory Blog

Spinak on Problem Solving Courts

Jane M. Spinak (Columbia Law School) has posted A Conversation About Problem-Solving Courts: Take 2 (University of Maryland Law Journal of Race, Religion, Gender & Class, Vol. 10, p. 113, 2010) on SSRN. Here is the abstract:

The University of Maryland Law Journal of Race, Religion, Gender and Class symposium on problem-solving courts surfaced a wide array of issues on the meaning and practices of these courts. My prepared remarks at the symposium addressed the first issue discussed in this article: the potential disparate impact of problem-solving courts on minority families who are disproportionately affected by these court processes. The second part of the article draws on the discussion during the symposium to reflect on the difficulty supporters and critics of the problem-solving court movement have in talking and listening to each other.

Murphy on a Constitutional Right to Self-Defense & the Burden of Proof

Patrick Michael Murphy (University of Connecticut - School of Law) has posted Heller: A Constitutional Right to Self-Defense & the Burden of Proof in Criminal Trials on SSRN. Here is the abstract:

In Heller, The Supreme Court not only recognized the Second Amendment’s protection of the individual right to bear arms but also the related constitutional right to self-defense. This paper examines past case holdings, historic context of the Second Amendment, and the text of Heller itself. Part III asks – assuming there is a constitutional right to self-defense – are states foreclosed from shifting the burden of proving such to criminal defendants? This part examines the history of the burden of proof and the historical precedent for burden shifting as well as cases involving constitutional rights and burden shifting. It concludes that while states may be allowed to require defendants bear a burden of production of evidence supporting self-defense, they will no longer be permitted to shift the burden of proof.

Abel on Evidence-Based Access to Justice

Laura Abel (Brennan Center for Justice at NYU School of Law) has posted Evidence-Based Access to Justice (University of Pennsylvania Journal of Law & Social Change, Forthcoming) on SSRN. Here is the abstract:

An evidence-based approach is notably absent from the many efforts to expand access to the justice system for civil litigants, and there is no generally accepted metric for evaluating which access to justice tool works when. This article proposes the use of controlled, randomized experiments to evaluate whether a particular access to justice intervention leads to the same rate of wins and losses as full and competent attorney representation. It also describes a second metric for assessing the fairness of proceedings in which a particular access to justice intervention is used: whether the intervention provides litigants with the ability to adequately perform all tasks they would need to perform to enable the judge to reach a fair and accurate decision.

Kritzer on Complaining & Claiming

Herbert M. Kritzer (University of Minnesota Law School) has posted The Antecedents of Disputes: Complaining and Claiming on SSRN. Here is the abstract:

This paper focuses on the earliest stages of the problem resolution function of law and legal institutions: the emergence of grievances and their communication to a responsible party as complaints and claims. While the literature on this subject is broad, both in terms of methods and in terms of the fairly large number of countries where empirical research on this subject has been conducted, it seems appropriate to ask the question, what do we know and not know about this subject? This paper seeks to answer this question and to suggest fruitful avenues of future inquiry. I first discuss the primary metaphors used in the literature. Following that I describe the broad approaches that have been applied in empirical research regarding complaining and claiming. I then examine the explanations that have been advanced for variations in complaining and claiming patterns, both at the individual and the aggregate levels; in this section I identify points of general agreement and issues where agreement is lacking. Finally, I propose an agenda for future research related to complaining and claiming.

Highly recommended.

Roach on Objective Foresight of Death & Murder

Kent Roach (University of Toronto - Faculty of Law) has posted The Problematic Revival of Section 229(c) of the Criminal Code (Alberta Law Review, Vol. 47, No. 3, 2010) on SSRN. Here is the abstract:

This article examines the increased use of the murder offense under s. 229(c) of the Criminal Code. It outlines how the objective foresight of death arm of s. 229(c) was struck down by the Supreme Court of Canada in R. v. Martineau, but still has not been repealed by Parliament. Three unfortunate cases are examined where trial judges erred by leaving the jury a copy of s. 229(c) with its unconstitutional objective arm present. The article examines the pre-Charter jurisprudence on s. 229(c) and suggests that the requirement that the accused have an unlawful object that is distinct from the actions that led to the death of the victim is still an important requirement. It then focuses on the second and most important mens requirement of s. 229(c), namely the requirement that the accused know that death was likely to occur. This fault requirement is examined and contrasted with recklessness and objective foresight of death, both of which are not constitutionally sufficient for a murder conviction. It is argued that some recent cases have treated accidental deaths during the pursuit of an unlawful object as murder under s. 229(c) and that such a result violates s. 7 of the Charter, including principles of fundamental justice that accidental deaths not be punished as murder and that unintentional harms not be punished as severely as intentional harms.

Owens on the Effect of Popular Media on Conviction Rates

Emily Greene Owens (Cornell University) has posted Media and the Criminal Justice System on SSRN. Here is the abstract:

People are influenced by what they see on television. With this in mind, legal scholars and criminal justice practitioners have begun to express concern that the discrepancy between how the justice system operates and how it is portrayed in popular media has hindered the system’s ability to function effectively. This interference has been coined the “CSI effect”; specifically, the use of forensic technology in crime dramas such as “CSI: Crime Scene Investigation” has limited prosecutors’ ability to obtain a conviction without DNA or other forensic evidence. Combining data on television viewing habits, convictions in state and federal courts, and capacity measures of publically funded forensics labs, I present evidence that these anecdotal concerns have merit, although the CSI effect primarily affects conviction rates through plea bargaining. I estimate that on average, increases in CSI popularity were weakly correlated with increases in conviction rates in federal and state court. However, in jurisdictions with small or unproductive forensic labs, the direction of the effect reverses.

Keele & Malmsheimer on a Strategic Model of Judicial Behavior in Lower Federal Courts

Denise Keele and Robert W. Malmsheimer (Western Michigan University - Political Science and State University of New York (SUNY) - SUNY College of Environmental Sciences & Forestry) have posted A Strategic Model of Judicial Behavior in the Lower Federal Courts on SSRN. Here is the abstract:

Although judges may be primarily motivated by their policy preferences, their pursuit of those preferences is often constrained by institutional roles and norms both internal and external to the federal judicial system that require judges to act strategically to translate those preferences into decision outcomes. This research combined endogenous constraints to the court in the interactions amongst justices with exogenous constraints to the court present in the relationships between the judicial, executive and legislative branches into strategic models for U.S. district court and court of appeals judges. Results suggest that the strategic model does explain judicial behavior that may not otherwise be understood as driven solely by attitudinal concerns. In both district court and court of appeals judges’ opinions, the strategic model correctly predicted more decisions than the attitudinal model. A judges’ ideological conflict with the preferences of their colleagues on appellate panels, the Supreme Court, Congress and the President were found to have a significant relationship with judges’ decisions to varying degrees. This research provides empirical support for the strategic model of judicial behavior and contributes to building this relatively new theory for use in understanding the behavior of lower federal court judges.

Chen & Yeh on the Economic Consequences of Eminent Domain

Daniel L. Chen and Susan Yeh (Duke University - School of Law and Harvard University - Harvard Law School) have posted The Economic Impacts of Eminent Domain on SSRN. Here is the abstract:

This paper evaluates prominent theories on the consequences of eminent domain. We exploit random assignment of appellate judges to three-judge panels and the fact that religious affiliation and public education of judges predict pro-plaintiff takings decisions to show a causal relationship between takings precedents and subsequent economic outcomes. Consistent with eminent domain encouraging development as property owners anticipate higher compensation, property prices rise in metro regions but fall in non-metro regions, where condemnation is less frequent. Eminent domain also spurs economic growth but exacerbates inequality as pro-defendant takings decisions increase local GDP, individual wages, and employment, but not for minorities.

Fredman on Socio-Economic Disadvantage & Anti-Discrimination Law

Sandra Fredman (University of Oxford Faculty of Law) has posted Positive Duties and Socio-Economic Disadvantage: Bringing Disadvantage onto the Equality Agenda on SSRN. Here is the abstract:

Traditionally in the UK, distributive inequalities have been dealt with quite separately from inequality based on sex, race, or other ‘status’. While distributive inequalities are regarded as the domain of the political sphere, inequality on grounds of ‘status’ is dealt with by anti-discrimination laws. It is thus of considerable importance that the Equality Act 2010 includes a positive duty on public bodies in relation to socio-economic disadvantage. The paper argues that, while only a small step in the right direction, the new duty is nevertheless a significant one. Paying attention to socio-economic disadvantage can only assist and strengthen the effectiveness of status-based anti-discrimination laws. At the same time, it needs to be recognised that there is a reciprocal interaction between socio-economic disadvantage and status. This makes it essential to achieve close co-ordination between the new socio-economic disadvantage duty and established status duties. It is, however, unfortunate that the duty is only one to ‘pay due regard’ to the desirability of reducing inequalities related to socio-economic disadvantage, rather than to take steps to achieve this end. Nevertheless, the ‘due regard’ standard can perform an important function if public bodies are required to justify and explain their decisions openly. It is thus of great importance that politicians and civil society groups insist on transparency and accountability of decision-makers; and that judicial review proceedings be viewed as a means of enforcing such accountability.

Conference Announcement: Legal Science at Oxford

Legal Science and Legal Theory: An International Conference on Philosophy of Law

From Wednesday 8 September until Friday 10 September 2010
Venue: Lecture Theatre 2, Faculty of Law

Online registration is now open. Those interested in attending are encouraged to register as soon as possible, as the number of places available is limited. To register please go to the registration page.

The Faculty of Law hosts a three-day international conference marking the 50th anniversary of the 2nd edition of Hans Kelsen’s Pure Theory of Law.

Leading theorists and philosophers from 11 countries will discuss central topics in contemporary jurisprudence while engaging with Kelsen’s many contributions to the field. By bringing together speakers from different legal systems and traditions, this conference purports to make a significant contribution to the current state of jurisprudential debate and to strengthen the international ties in the jurisprudence community. The full programme is available.

Accommodation is not provided for anyone other than the speakers, but Bed & Breakfast college accommodation may be booked throughwww.budgetstayuk.com; www.oxfordrooms.co.uk; and hotels and B&Bs in Oxford may be booked through www.visitoxford.org

This conference is supported by the Faculty of Law and the Oxford Centre for Ethics & Philosophy of Law; by the Faculty of Law at the University of Buenos Aires; and held in cooperation with and co-funded by the Austrian Science Fund Project Project ‘Bibliographical Research on Hans Kelsen’ at the University of Vienna (P19287,www.hanskelsen.eu).

Organization: John Gardner, Leslie Green, and Luís Duarte d’Almeida

For more information please contact:
Luís Duarte d'Almeida

Organised by the Oxford Law Faculty in conjunction with Oxford Centre for Ethics and Philosophy of Law; Austrian Science Fund (FWF).