scholarly journals The Opacity of Law: On the Hidden Impact of Experts’ Opinion on Legal Decision-making

2021 ◽  
Author(s):  
Damiano Canale
Keyword(s):  
Decision Making ◽  
Expert Opinion ◽  
Legal Authority ◽  
Legal Decision ◽  
Legal Text ◽  
Legal Decision Making ◽  
The Law ◽  
Fact Finding ◽  
Linguistic Content

AbstractIt is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making.

Balancing, Subsumption, and the Constraining Role of Legal Text

2010 ◽  
Vol 4 (1) ◽  
pp. 35-45 ◽  
Author(s):  
Frederick Schauer
Keyword(s):  
Decision Making ◽  
Legal Argumentation ◽  
Legal Decision ◽  
Jürgen Habermas ◽  
Legal Text ◽  
Written Text ◽  
Legal Decision Making ◽  
External Constraint ◽  
Canonical Texts

Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jürgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making.

Exclusionary Reasons, Virtuous Motivation, and Legal Authority

2018 ◽  
Vol 31 (2) ◽  
pp. 347-364
Author(s):  
Andrew Jordan
Keyword(s):  
Decision Making ◽  
Moral Motivation ◽  
Practical Rationality ◽  
Moral Reasons ◽  
Legal Authority ◽  
Legal Decision ◽  
Order Model ◽  
First Order ◽  
Legal Decision Making ◽  
The Relationship

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.

Forensic Science Evidence, Adversarial Criminal Proceedings, and Mainstream Scientific “Advice”

2019 ◽  
pp. 760-785
Author(s):  
Gary Edmond
Keyword(s):  
Decision Making ◽  
Forensic Science ◽  
Expert Opinion ◽  
Forensic Sciences ◽  
Scientific Advice ◽  
Legal Decision ◽  
Criminal Proceedings ◽  
Legal Decision Making ◽  
Science Evidence

This chapter examines adversarial responses to forensic science evidence, with emphasis on the implicit orderliness and taken-for-granted evidentiary value of some historical (that is, pre-DNA) forensic sciences as well as the legal assumptions and practices that developed symbiotically alongside them. It first provides an overview of the main rules and procedures regulating the admission and use of expert opinion evidence in adversarial criminal proceedings before discussing the findings and recommendations of various scientific reviews. It also considers legal engagement with forensic science evidence and related scientific advice, and concludes by asking whether there are meaningful standards regulating the admission of forensic science evidence and noting the implications of this for the efficacy of traditional adversarial trial mechanisms, the fairness of proceedings, and the rectitude of legal decision-making.

Stereotypes and legal decision making

2014 ◽  
Author(s):  
John G. Conway ◽  
Scott R. Tindale
Keyword(s):  
Decision Making ◽  
Legal Decision ◽  
Legal Decision Making
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