scholarly journals What is an appropriate measure of litigation? Quantification, qualification and differentiation of dispute resolution

2020 ◽  
Author(s):  
Carrie Menkel-Meadow
Keyword(s):  
United States ◽  
Decision Making ◽  
Dispute Resolution ◽  
Legal Culture ◽  
The United States ◽  
Class Action ◽  
Access To Justice ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Toma De Decisiones

This article reviews the claims about rates of litigation in the United States, as either “too much” or “too little” (e.g. “The Vanishing Trial”). While we need to understand aggregate litigation rates to assess access to justice, it may be more important to understand litigation rates in the context of differentiated case types. Litigation, in some cases, produces too “brittle” (binary) or costly outcomes, which is what led to the American “A” (alternative/appropriate) Dispute Resolution movement. This movement (now moving across the globe) may provide “process pluralism” with greater flexibility in outcome and cost variations, (now often called “a”ccesible dispute resolution”). However, litigation is still important in a variety of justice-seeking contexts (e.g. for new rights creation, old rights enforcement, and precedent elaboration). This article suggests that the question of how much litigation is appropriate in any legal culture is dependent on a variety of factors that goes beyond simple aggregate counting. The article concludes with a critique of recent American legal practices in restricting litigation through mandatory arbitration, non-disclosure agreements, class action limitations, privatized mass claim settlements, and restrictive jurisdictional interpretations in judicial decision making and legislation. Este artículo repasa las afirmaciones de que hay “demasiados” o “demasiado pocos” litigios en los EE. UU. Si bien es necesario entender las proporciones de litigios agregados para evaluar el acceso a la justicia, tal vez sea más importante entender las proporciones de litigios en el contexto de tipos de casos diferenciados. En algunas ocasiones, los litigios producen resultados demasiado “frágiles” (binarios) o costosos, lo cual originó el movimiento llamado “American ‘A’ (alternativo/adecuado) Dispute Resolution”. Este movimiento, ahora en expansión por todo el mundo, puede proporcionar “pluralismo procesal” de forma más flexible con diferentes resultados y costes (lo que ahora se denomina “resolución de conflictos ‘a’ccesible”). Sin embargo, el acto de litigar sigue siendo importante en varios contextos de búsqueda de justicia (por ej., para crear nuevos derechos, para aplicación de viejos derechos, y para la elaboración precedente). Este artículo da a entender que la proporción de litigios apropiada en cualquier cultura jurídica depende de varios factores más allá de un recuento. Se concluye con una crítica de prácticas jurídicas recientes en América, consistentes en la restricción del litigio por arbitraje obligatorio, acuerdos de confidencialidad, limitaciones en demandas colectivas, liquidación de reclamaciones colectivas e interpretaciones jurisdiccionales restrictivas en la toma de decisiones judiciales y en la legislación.

Using Process Theory to Explain Judicial Decision Making.

1986 ◽  
Vol 1 ◽  
pp. 57-79 ◽  
Author(s):  
Carl Baar
Keyword(s):  
United States ◽  
Decision Making ◽  
United States Supreme Court ◽  
The United States ◽  
Legal Analysis ◽  
Judicial Decision ◽  
Judicial Process ◽  
Judicial Decision Making ◽  
Judicial Studies ◽  
Canadian Research

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

Precedents and Chinese Judges: An Experiment

2021 ◽  
Author(s):  
John Zhuang Liu ◽  
Lars Klöhn ◽  
Holger Spamann
Keyword(s):  
United States ◽  
Decision Making ◽  
Significant Influence ◽  
Real World ◽  
The United States ◽  
The Other ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Time Reading

Abstract We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891

2002 ◽  
Vol 96 (3) ◽  
pp. 511-524 ◽  
Author(s):  
Howard Gillman
Keyword(s):  
United States ◽  
Decision Making ◽  
Electoral Politics ◽  
The United States ◽  
Federal Courts ◽  
General Interest ◽  
Late Nineteenth Century ◽  
Judicial Decision ◽  
Judicial Decision Making

This case study of late-nineteenth century federal courts in the United States sheds light on two seemingly unrelated questions of general interest to political scientists: What tools are available to party leaders who seek to institutionalize their policy agendas or insulate those agendas from electoral politics? and How do we account for expansions of judicial power? Using an historical–interpretive analysis of partisan agendas, party control of national institutions, congressional initiatives relating to federal courts, the appointment of federal judges, judicial decision making, and litigation patterns, I demonstrate that the increased power, jurisdiction, and conservatism of federal courts during this period was a by-product of Republican Party efforts to promote and entrench a policy of economic nationalism during a time when that agenda was vulnerable to electoral politics. In addition to offering an innovative interpretation of these developments, I discuss the implications arising from this case study for our standard accounts of partisan politics, political development, and the determinants of judicial decision making.

scholarly journals Sexual Predators, Extended Supervision, and Preventive Social Control: Risk Management Under the Spotlight

2014 ◽  
Vol 1 (15) ◽  
pp. 97
Author(s):  
Warren J Brookbanks
Keyword(s):  
United States ◽  
Decision Making ◽  
Risk Management ◽  
Sex Offenders ◽  
The United States ◽  
Sex Offending ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Sexual Predators

<p align="LEFT">The purpose of this article is to assess the legitimacy of the preventive detention model represented by New Zealand's Parole (Extended Supervision) Amendment Act 2004 in light of the legislative response to sex offenders in other jurisdictions, notably the United States and England. It is argued that the growing legislative practice of imposing administrative detention post-sentence represents a dangerous trend in criminal justice and disguises a largely undeclared agenda to isolate and demonise sex offenders as a class. It also has implications for other offender groups who may be targeted because the particular class is perceived as presenting a particular type of risk. Since the empowering legislation is often passed in haste and without due consideration of its long term impacts, it bears the hallmarks of a pre-reflective, “at least we’re doing something,” response to the problem of sex offending. It also provides a context for pretextual and sanist judicial values to operate, permitting distorted and illinformed judicial decision-making, particularly where judges’ thinking is infected by populist punitive approaches. Invariably, such legislation and the policy surrounding it, fails completely to address fundamental causal patterns underlying sex offending phenomena.</p><p align="LEFT">It is suggested that in order to address these phenomena squarely, it will be necessary to abandon the current tendency towards isolating sex offenders and refocus our energy on traditional responses of retribution, reform and rehabilitation within conventional principles of criminal process.</p>

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

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