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This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in light of abolition – illustrated in the landmark Slaughterhouse Case, and the Civil Rights Cases of 1883 – were ultimately referred to the Supreme Court. The author asserts that the Court's interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments in these cases served to undermine the cause of the new “secret” constitution.

Despite broad public support, the civil jury in Canada exists in some jurisdictions in little more than name only, while it has been abolished in a few jurisdictions. Civil juries appear to be used more in Ontario compared to other provinces. This chapter explains why Canadian civil juries exist only at the margins by examining the availability of civil juries, empirical evidence regarding their use and cost in Ontario, and academic and policy debates concerning their role.

This chapter addresses questions regarding the function of the modern jury. These include why juries have been given so important a place in the judicial process, and how the jury ought to be constituted to carry out its work. The chapter also examines the process used to select a jury, instructions used to structure decision-making, and the nature and form of jury verdicts. Despite many challenges to the jury system, careful assessment suggests that juries are still a necessary and effective part of the judicial system.

This chapter examines the Civil Rights Act of 1875, also known as the Supplementary Civil Rights Act because it was intended as a supplement to the 1866 Civil Rights Act, from a human rights perspective. The 1875 act, grounded in the Thirteenth and Fourteenth Amendments, was enacted as a culminating decree of slave emancipation and newly defined pleasurable liberties as affirmative rights. The supplement was struck down by the Supreme Court in the Civil Rights Cases of 1883 for encroaching on state sovereignty. This chapter considers the debate in Congress over the issue of human rights and argues that the Civil Rights Act of 1875—despite being aborted—represents a turning point in the abolition of slavery and the emergence of human rights.

This chapter discusses the role of neuropsychology in civil and criminal cases. Neuropsychologists may be called on to assist in civil cases (e.g., in personal injury claims after traumatic brain injury) and other brain injury including medical negligence (e.g., anaesthetic accident). Cases in which there is severe brain injury are amongst the largest personal injury claims coming before the Courts. The large amounts at stake reflect that the costs of providing specialized care to someone with significant disability for the rest of their life are very substantial, together with the fact that there may be substantial loss of earnings. Neuropsychologists sometimes also assist in criminal cases where issues regarding fitness to plead and fitness to present evidence arise in individuals who may be neuropsychologically impaired. In addition, retrograde amnesia and post traumatic amnesia associated with traumatic brain injury may limit recall of key events, such as an accident or assault, and this can raise important issues so that the Court may require information about the nature and extent of these periods of amnesia.

This chapter first discusses the Civil Procedure Rules 1998 (CPR) and the sources of English civil procedure. It then covers the stages in the course of a civil action; commencement of proceedings; accelerated and interim relief; case management; disclosure; legal advice and litigation privileges; experts; settlement and mediation; trial, evidence, and appeal; costs; res judicata and the principle of finality; enforcement; and proceedings under the Arbitration Act 1996.

This chapter examines the law and practice of mediation in England and Wales. Key issues include the promotion of mediation in civil cases through the Civil Procedure Rules (CPR), using pre-action protocols and the rules on costs in particular, as well as the interaction between mediation and the common law rules of confidentiality and privilege. England has taken a very light-handed approach to the regulation of mediation, with few rules in place outside of the legal aid scheme's funding code, and those required by the Mediation Directive (which has been implemented only in relation to cross-border mediations). Accordingly, a number of private organisations have been developing the jurisdiction's mediation profession and infrastructure (with the support of the judiciary) since the 1990s, but almost all matters of practice and procedure are left to the parties' discretion. A number of empirical studies are commented on, particularly in the context of family mediation and small claims mediation.

This chapter considers the jury as a distinct institution. The chapter's consideration of the available evidence concentrates on the following areas: antitrust cases the criminal and civil domaines; and systematic effects of the jury on antitrust adjudication and the possible reforms that could help to rationalize the jury within the increasingly technical and technocratic antitrust domain. It has been observed that there are no clarifications regarding how deep the problem is. The best thing that can be done is to study systematically the behavioral performance of antitrust juries. The ongoing experiment of the procedural mechanisms brings judgments in line with modern, technical, and economic concepts of antitrust.

This chapter begins with a historical look at the English jury, and then briefly places the jury and jury reform in the context of the English legal and political system. After outlining the limited role remaining for juries in civil cases, it focuses on the shrinking right to jury trial in criminal trials, and the rules governing such matters as the juror selection, the conduct of the trial, and verdicts.

This chapter discusses the gendarmes' sense of hearing. Usually, the gendarmes' work began with what they heard people say, how these people told them what they had to say, how the gendarmes listened to them and tried to make sense of what they had just heard. Technically, the gendarmes were supposed to “hear” structure in what they were told; to make a distinction between civil and criminal matters, between felonies, misdemeanors, and minor offences. Their bureaucratically attuned ear, in other words, was supposed to “hear” order behind all the noise. Yet what the gendarmes' “vocational ear” was ultimately attuned to was anything but fixed and clear—among others because the gendarmes had little say in what people told them in the first place. In this frontier-condition, both the world and the senses undergo a process of mutual ordering—or attuning.

This chapter discusses the sources that are used for solving civil cases. It looks at the active role of legislation in meeting and shaping changing situations. It attempts to answer what were the relevant laws on land, debt, and marriage. The chapter also presents an argument that the relevant law was systematized under the Qing in its context and applicability to solve disputes.

This chapter revisits and restages U.S. Supreme Court cases on affirmative action and the critique of “reverse discrimination” claims within a broader set of jurisprudential and philosophical questions about black citizenship and civil rights. Through a close reading of how the fantasy of colorblindness is articulated in affirmative action law through a multiracial national citizenship constituted against the historical limit of slavery, this chapter argues that the figure of black citizenship occupies a type of legal standing that promises only a constant cancellation of civil rights. The black claim to civil rights not only fails to achieve the status of an affirmative recognition of a citizen subject, but also, its force as a right decomposes the philosophical interdependence between citizenship and civil rights in the broader arena of Equal Protection anti-discrimination jurisprudence.

The 1866 Act received restrictive interpretations even during Reconstruction, as did the Reconstruction amendments and other civil rights legislation. The Slaughter-House Cases, narrowly interpreting the Privileges or Immunities Clause of the Fourteenth Amendment, were emblematic of this tendency, which accelerated with the end of Reconstruction. These developments culminated in the Civil Rights Cases, which invalidated the public accommodations provisions of the Civil Rights Act of 1875. Nevertheless, even the Civil Rights Cases recognized the power of Congress to legislate against the “badges and incidents of slavery” in enforcing the Thirteenth Amendment. The restrictive developments were driven as much by concerns about preserving the balance of state and federal power, inherited from antebellum law, as they were by a waning political commitment to Reconstruction. The surviving civil rights laws, like the 1866 Act, represented an incomplete experiment in achieving equality in public life—one that was neither wholly repudiated nor effectively pursued when Reconstruction was abandoned. It had to await the Civil Rights Era before it was revived.

This chapter looks at connections, similarities, and differences between the courts of Cicero's ancient Rome and the practice of the advocate's profession in modern England. In the field of civil cases, the institutional independence of the advocate's profession in England is perhaps clearest in the context of judicial review litigation, in which executive decisions taken by government ministers or in their name are challenged every day in the court calendar. The art of advocacy is the art of persuasion, with Cicero's spectacular success depending on a mixture of flattery, emotional appeal, and the force of argument. The modern advocate's ethics are by no means only concerned with the virtues of courage and independence and the cab-rank rule. He also has a duty to the court, which in today's jurisdiction is a permanent obligation. Cicero would not have recognised such a duty as it is now conceived.

Chapter 1 traces the long, hard-fought battle over black southerners’ legal rights that took place during and in the wake of the Civil War. Individual African Americans who fought for their rights in the face of incursions by their former masters and other whites were at the front lines of this battle. By appealing to federal agencies like the Freedmen’s Bureau, hiring lawyers, and testifying in courtrooms throughout the South, they mounted a stiff challenge to white southerners’ attempts to continue to largely shut them out of the courts. The federally operated Freedmen’s Bureau and the northern military occupying the South also worked to open southern courts to African Americans during the early years of Reconstruction. In addition, Congressional Republicans’ takeover of Reconstruction helped give some black southerners the federal support to exercise the rights they claimed.

Chapter 2 traces the legal journey of African Americans who succeeded in litigating cases against white southerners in the 35 years after the Civil War. In many cases, they litigated suits against the very whites who had enslaved them. The chapter discusses why black southerners turned to the courts and the obstacles they met in attempting to litigate suits against whites. It follows black southerners as they hired lawyers, testified before crowded courtrooms, and appealed their suits to their state’s highest courts. It discusses as well why white lawyers represented black litigants, the motivations of white and black witnesses in such suits, and the considerations of juries and judges deciding civil cases between black and white southerners.

The number of mediations in Italy is rising exponentially following the enactment of the new Mediation Law (Legislative Decree 28/2010). In implementing the 2008 European Directive on cross-border mediation, Italian lawmakers decided to go beyond voluntary mediation and introduced mandatory pre-trial mediation in a variety of civil and commercial cases. The law aims to reduce the incredible backlog of civil cases pending in Italy (more than 5.6 million) and to shorten the average eight-year duration of civil cases. Despite the strong opposition to mandatory mediation by a sector of the Italian bar, mediation organisations are moving forward to accommodate the increasing demand, and the procedure as a whole is gaining traction. This chapter aims to present the key regulatory features of the Italian law, as well as to provide analytical commentary on the status of mediation as perceived by the Italian public.

Chapter 8 traces African Americans’ continuing civil litigation in southern courts from 1921 to 1950. Beginning in the 1920s, African Americans began to litigate a wider range of types of civil cases against whites in southern state supreme courts. Black litigants were no longer forced to rely so heavily on stereotypes and claims of ignorance and vulnerability to win a case. More and more of black litigants’ seemingly ordinary appellate civil cases protested intimidation and violence against African Americans or made claims for larger groups of African Americans, beyond just the individuals litigating the suits. A few cases even directly challenged discriminatory racial regimes, at times using the techniques they had used to win other kinds of civil cases over the past decades. Although some of these cases were orchestrated by racial justice organizations like the NAACP, many others were brought by individual African Americans.

Chapter 5 shows the shifts that occurred in the types of civil cases African Americans were able to litigate in southern courts at the end of the nineteenth century, as segregation and disfranchisement became increasingly written into law around the South. Even as white southerners dismantled the political system put in place during Reconstruction, they did not change the structure of the legal system. They viewed black southerners’ involvement in the courts as far less dangerous than African Americans entering the polling booth. As African American men lost the power to vote, however, the kinds of civil cases black southerners were able to litigate against whites in southern courts narrowed. Almost three quarters of their appellate civil suits in the first two decades of the twentieth century now involved particularly egregious cases of fraud in property dealings or personal injury claims and highlighted black people in dependent, vulnerable positions.