Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.001.0001
- Subject:
- Psychology, Forensic Psychology
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. ...
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In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.Less
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.
Landon R. Y. Storrs
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691153964
- eISBN:
- 9781400845255
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691153964.001.0001
- Subject:
- History, American History: 20th Century
The loyalty investigations triggered by the Red Scare of the 1940s and 1950s marginalized many talented women and men who had entered government service during the Great Depression seeking to promote ...
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The loyalty investigations triggered by the Red Scare of the 1940s and 1950s marginalized many talented women and men who had entered government service during the Great Depression seeking to promote social democracy as a means to economic reform. Their influence over New Deal policymaking and their alliances with progressive labor and consumer movements elicited a powerful reaction from conservatives, who accused them of being subversives. This book draws on newly declassified records of the federal employee loyalty program—created in response to fears that Communists were infiltrating the U.S. government—to reveal how disloyalty charges were used to silence these New Dealers and discredit their policies. Because loyalty investigators rarely distinguished between Communists and other leftists, many noncommunist leftists were forced to leave government or deny their political views. This book finds that loyalty defendants were more numerous at higher ranks of the civil service than previously thought, and that many were women, or men with accomplished leftist wives. Uncovering a forceful left-feminist presence in the New Deal, the book shows how opponents on the Right exploited popular hostility to powerful women and their “effeminate” spouses. The loyalty program not only destroyed many promising careers, it prohibited discussion of social democratic policy ideas in government circles, narrowing the scope of political discourse to this day. This book demonstrates how the Second Red Scare undermined the reform potential of the New Deal and crippled the American welfare state.Less
The loyalty investigations triggered by the Red Scare of the 1940s and 1950s marginalized many talented women and men who had entered government service during the Great Depression seeking to promote social democracy as a means to economic reform. Their influence over New Deal policymaking and their alliances with progressive labor and consumer movements elicited a powerful reaction from conservatives, who accused them of being subversives. This book draws on newly declassified records of the federal employee loyalty program—created in response to fears that Communists were infiltrating the U.S. government—to reveal how disloyalty charges were used to silence these New Dealers and discredit their policies. Because loyalty investigators rarely distinguished between Communists and other leftists, many noncommunist leftists were forced to leave government or deny their political views. This book finds that loyalty defendants were more numerous at higher ranks of the civil service than previously thought, and that many were women, or men with accomplished leftist wives. Uncovering a forceful left-feminist presence in the New Deal, the book shows how opponents on the Right exploited popular hostility to powerful women and their “effeminate” spouses. The loyalty program not only destroyed many promising careers, it prohibited discussion of social democratic policy ideas in government circles, narrowing the scope of political discourse to this day. This book demonstrates how the Second Red Scare undermined the reform potential of the New Deal and crippled the American welfare state.
Stephanos Bibas
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780195374681
- eISBN:
- 9780199933204
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374681.001.0001
- Subject:
- Law, Criminal Law and Criminology
Two centuries ago the criminal justice system was primarily run by laymen. In court, victims and defendants interacted face to face while lay jurors from the community sat in judgment. Jury trials ...
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Two centuries ago the criminal justice system was primarily run by laymen. In court, victims and defendants interacted face to face while lay jurors from the community sat in judgment. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, denounced guilty defendants, and reconciled and healed wounded relationships. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for voice of the jury. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers. This
book explores these trends and considers how criminal justice could better accommodate lay participation, values, and relationships.Less
Two centuries ago the criminal justice system was primarily run by laymen. In court, victims and defendants interacted face to face while lay jurors from the community sat in judgment. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, denounced guilty defendants, and reconciled and healed wounded relationships. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for voice of the jury. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers. This
book explores these trends and considers how criminal justice could better accommodate lay participation, values, and relationships.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.003.005
- Subject:
- Psychology, Forensic Psychology
This chapter reviews recent research on the comprehension of the Miranda rights by members of several vulnerable groups. For example, the warnings often exceed the reading level of the typical ...
More
This chapter reviews recent research on the comprehension of the Miranda rights by members of several vulnerable groups. For example, the warnings often exceed the reading level of the typical adolescent suspect. For non-English-speaking persons, the translation to their language may be difficult. For deaf suspect, American Sign Language lacks several relevant terms. The problem is exacerbated by the fact that there is no regulation of the specific warning, so that some jurisdictions have verbose, complicated warnings with complex sentences and word length of 400 or more words.Less
This chapter reviews recent research on the comprehension of the Miranda rights by members of several vulnerable groups. For example, the warnings often exceed the reading level of the typical adolescent suspect. For non-English-speaking persons, the translation to their language may be difficult. For deaf suspect, American Sign Language lacks several relevant terms. The problem is exacerbated by the fact that there is no regulation of the specific warning, so that some jurisdictions have verbose, complicated warnings with complex sentences and word length of 400 or more words.
Peter Birks
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199276981
- eISBN:
- 9780191699917
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276981.001.0001
- Subject:
- Law, Law of Obligations
This book gives a concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past and insists on the switch from restitution to ...
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This book gives a concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past and insists on the switch from restitution to unjust enrichment, from response to event. It organises modern law around five simple questions: Was the defendant enriched? If so, was it at the claimant's expense? If so, was it unjust? The fourth question is then what kind of right the claimant has, and the fifth is whether the defendant has any defences. This text is the second edition, which was revised and updated by the author before his death in 2004. It represents the final thinking of the world's leading authority on the subject.Less
This book gives a concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past and insists on the switch from restitution to unjust enrichment, from response to event. It organises modern law around five simple questions: Was the defendant enriched? If so, was it at the claimant's expense? If so, was it unjust? The fourth question is then what kind of right the claimant has, and the fifth is whether the defendant has any defences. This text is the second edition, which was revised and updated by the author before his death in 2004. It represents the final thinking of the world's leading authority on the subject.
Landon R. Y. Storrs
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691153964
- eISBN:
- 9781400845255
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691153964.003.0007
- Subject:
- History, American History: 20th Century
This chapter looks at private letters and other unpublished sources about defendants other than the Keyserlings to recapture the subjective experience of being investigated, not as an exercise in ...
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This chapter looks at private letters and other unpublished sources about defendants other than the Keyserlings to recapture the subjective experience of being investigated, not as an exercise in voyeurism but to explain why the effects were so profound. The experience of being under loyalty investigation produced a wide range of responses from individuals and had many long-lasting effects—on their economic security, mental and physical health, personal relationships, and civic participation. Many loyalty defendants preferred to remain silent about these humiliating experiences, but examining them is necessary to establish the context in which these people made difficult strategic and ethical decisions about how best to protect themselves.Less
This chapter looks at private letters and other unpublished sources about defendants other than the Keyserlings to recapture the subjective experience of being investigated, not as an exercise in voyeurism but to explain why the effects were so profound. The experience of being under loyalty investigation produced a wide range of responses from individuals and had many long-lasting effects—on their economic security, mental and physical health, personal relationships, and civic participation. Many loyalty defendants preferred to remain silent about these humiliating experiences, but examining them is necessary to establish the context in which these people made difficult strategic and ethical decisions about how best to protect themselves.
Landon R. Y. Storrs
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691153964
- eISBN:
- 9781400845255
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691153964.003.0008
- Subject:
- History, American History: 20th Century
This chapter examines the connection between disloyalty charges and the shift toward the political center, or out of government service, by many public officials, which has been difficult to discern ...
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This chapter examines the connection between disloyalty charges and the shift toward the political center, or out of government service, by many public officials, which has been difficult to discern because of the silence that loyalty defendants maintained, even many years later. As they organized papers, gave interviews, and drafted memoirs, they typically avoided disclosing that they had been investigated and downplayed the leftism that had put them in the line of fire. Leon and Mary Dublin Keyserling were not the only former loyalty defendants to offer accounts that were distorted by an accumulation of omissions; they are not to blame for trying to protect themselves and their associates from further persecution. In addition to impeding progressive reform, policymakers' traumatic encounters with the federal employee loyalty program impoverished the primary sources on which scholars have relied to understand mid-twentieth-century American politics.Less
This chapter examines the connection between disloyalty charges and the shift toward the political center, or out of government service, by many public officials, which has been difficult to discern because of the silence that loyalty defendants maintained, even many years later. As they organized papers, gave interviews, and drafted memoirs, they typically avoided disclosing that they had been investigated and downplayed the leftism that had put them in the line of fire. Leon and Mary Dublin Keyserling were not the only former loyalty defendants to offer accounts that were distorted by an accumulation of omissions; they are not to blame for trying to protect themselves and their associates from further persecution. In addition to impeding progressive reform, policymakers' traumatic encounters with the federal employee loyalty program impoverished the primary sources on which scholars have relied to understand mid-twentieth-century American politics.
Mike McConville, Jacqueline Hodgson, Lee Bridges, and Anita Pavlovic
- Published in print:
- 1994
- Published Online:
- March 2012
- ISBN:
- 9780198258681
- eISBN:
- 9780191681851
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258681.001.0001
- Subject:
- Law, Criminal Law and Criminology
Criminal cases are commonly seen as a fight between adversaries of equal strength: the intrusive power of the State versus skilled defence lawyers advocating their clients' cause. The reality, ...
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Criminal cases are commonly seen as a fight between adversaries of equal strength: the intrusive power of the State versus skilled defence lawyers advocating their clients' cause. The reality, according to this major new study, is rather different. The provision of defence counsel is often rudimentary and unsatisfactory. Based on one of the largest studies of legal professional practice ever undertaken, involving nearly fifty solicitors' firms, this book offers a critical examination of the practices and organisation of defence lawyers in Britain. The authors show how defence lawyers discharge their obligations to clients from the moment of initial contact through to the routine preparation and representation of defendants in both magistrates' and Crown Courts. For the first time, this study reveals the role of paralegals and unqualified staff in providing defence assistance, and highlights how their inexperience and assumption of the client's guilt can critically undermine defendants' rights. The deficiencies highlighted by their research lead the authors to question the effectiveness of recent liberal and managerial reforms, with their excessive reliance on market-led considerations. They propose a cultural transformation in criminal defence work, a reassertion of the defendants' rights within an adversarial system, and offer constructive suggestions for improving defence services.Less
Criminal cases are commonly seen as a fight between adversaries of equal strength: the intrusive power of the State versus skilled defence lawyers advocating their clients' cause. The reality, according to this major new study, is rather different. The provision of defence counsel is often rudimentary and unsatisfactory. Based on one of the largest studies of legal professional practice ever undertaken, involving nearly fifty solicitors' firms, this book offers a critical examination of the practices and organisation of defence lawyers in Britain. The authors show how defence lawyers discharge their obligations to clients from the moment of initial contact through to the routine preparation and representation of defendants in both magistrates' and Crown Courts. For the first time, this study reveals the role of paralegals and unqualified staff in providing defence assistance, and highlights how their inexperience and assumption of the client's guilt can critically undermine defendants' rights. The deficiencies highlighted by their research lead the authors to question the effectiveness of recent liberal and managerial reforms, with their excessive reliance on market-led considerations. They propose a cultural transformation in criminal defence work, a reassertion of the defendants' rights within an adversarial system, and offer constructive suggestions for improving defence services.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.009
- Subject:
- Psychology, Forensic Psychology
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their ...
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Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.Less
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.
Angela J. Davis
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780195384734
- eISBN:
- 9780199852369
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195384734.001.0001
- Subject:
- Law, Criminal Law and Criminology
What happens when public prosecutors, the most powerful officials in the criminal justice system, seek convictions instead of justice? Why are cases involving well-to-do victims often prosecuted more ...
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What happens when public prosecutors, the most powerful officials in the criminal justice system, seek convictions instead of justice? Why are cases involving well-to-do victims often prosecuted more vigorously than those involving poor victims? Why do wealthy defendants frequently enjoy more lenient plea bargains than the disadvantaged? This book looks at the power of American prosecutors, revealing how the day-to-day practice of prosecutors can result in the unequal treatment of defendants and victims. Ranging from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases, to the increasing politicization of the office, the chapter uses stories of individuals caught in the system to demonstrate how the legal exercise of prosecutorial discretion can result in inequities in criminal justice. The chapter also covers recent incidents of prosecutorial abuse such as the Jena Six case, the Duke lacrosse case, and the Department of Justice firings.Less
What happens when public prosecutors, the most powerful officials in the criminal justice system, seek convictions instead of justice? Why are cases involving well-to-do victims often prosecuted more vigorously than those involving poor victims? Why do wealthy defendants frequently enjoy more lenient plea bargains than the disadvantaged? This book looks at the power of American prosecutors, revealing how the day-to-day practice of prosecutors can result in the unequal treatment of defendants and victims. Ranging from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases, to the increasing politicization of the office, the chapter uses stories of individuals caught in the system to demonstrate how the legal exercise of prosecutorial discretion can result in inequities in criminal justice. The chapter also covers recent incidents of prosecutorial abuse such as the Jena Six case, the Duke lacrosse case, and the Department of Justice firings.
Franklin E. Zimring
- Published in print:
- 2005
- Published Online:
- May 2012
- ISBN:
- 9780195181166
- eISBN:
- 9780199943302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195181166.003.0021
- Subject:
- Sociology, Law, Crime and Deviance
This chapter considers one set of subjective personal factors that influence the extent to which adolescent defendants deserve punishment for particular blameworthy acts. It argues that even when a ...
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This chapter considers one set of subjective personal factors that influence the extent to which adolescent defendants deserve punishment for particular blameworthy acts. It argues that even when a particular young person possesses the cognitive capacities and social controls necessary to be eligible for punishment, immaturity should continue to be a mitigating circumstance for some time. The chapter is organized into four sections. The first section attempts to create mutually exclusive definitions of capacity and diminished responsibility to avoid a persistent confusion between threshold issues of capacity and questions of the proper level of punishment for an immature offender. The second section argues that juvenile courts in the United States have been a recognized part of a punishment system for at least a generation. The third section first distinguishes between two separate reasons for lower levels of punishment of the immature: penal proportionality and theories of youth as a protected and privileged status. The diminished responsibility doctrine in penal theory is then developed at some length and contrasted to changes in adolescent punishment based on youth policy. The fourth section addresses the relationship between assumptions about immaturity that animate various conceptions of diminished responsibility and other legal doctrines that govern adolescence in modern industrial states.Less
This chapter considers one set of subjective personal factors that influence the extent to which adolescent defendants deserve punishment for particular blameworthy acts. It argues that even when a particular young person possesses the cognitive capacities and social controls necessary to be eligible for punishment, immaturity should continue to be a mitigating circumstance for some time. The chapter is organized into four sections. The first section attempts to create mutually exclusive definitions of capacity and diminished responsibility to avoid a persistent confusion between threshold issues of capacity and questions of the proper level of punishment for an immature offender. The second section argues that juvenile courts in the United States have been a recognized part of a punishment system for at least a generation. The third section first distinguishes between two separate reasons for lower levels of punishment of the immature: penal proportionality and theories of youth as a protected and privileged status. The diminished responsibility doctrine in penal theory is then developed at some length and contrasted to changes in adolescent punishment based on youth policy. The fourth section addresses the relationship between assumptions about immaturity that animate various conceptions of diminished responsibility and other legal doctrines that govern adolescence in modern industrial states.
Franklin E. Zimring
- Published in print:
- 2005
- Published Online:
- May 2012
- ISBN:
- 9780195181166
- eISBN:
- 9780199943302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195181166.003.0052
- Subject:
- Sociology, Law, Crime and Deviance
This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. It argues that reducing the hazards of juvenile court processing may ...
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This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. It argues that reducing the hazards of juvenile court processing may be a better approach to protecting minority youth than just trying to reduce the proportion of juvenile court cases with minority defendants. The chapter is organized into two sections. The first section concerns the conceptual equipment necessary to assess the impact of legal policies on minority populations. The second section attempts to apply the apparatus developed in the first section to discuss recent chapters in juvenile justice law reform: changes in transfer policy, the deinstitutionalization of status offenders, and the embrace of diversion programs.Less
This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. It argues that reducing the hazards of juvenile court processing may be a better approach to protecting minority youth than just trying to reduce the proportion of juvenile court cases with minority defendants. The chapter is organized into two sections. The first section concerns the conceptual equipment necessary to assess the impact of legal policies on minority populations. The second section attempts to apply the apparatus developed in the first section to discuss recent chapters in juvenile justice law reform: changes in transfer policy, the deinstitutionalization of status offenders, and the embrace of diversion programs.
Prince Saprai
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199567751
- eISBN:
- 9780191705267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199567751.003.0015
- Subject:
- Law, Law of Obligations, Philosophy of Law
This chapter claims that unconscionability and its cognate exploitation offer a plausible account of the duty to make restitution particularly in the context of undue influence and unconscionable ...
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This chapter claims that unconscionability and its cognate exploitation offer a plausible account of the duty to make restitution particularly in the context of undue influence and unconscionable dealing. It begins by claiming that the application criteria of the undue influence and unconscionable dealing doctrines, judicial language, and the facts and outcomes of these cases support the view that restitution is awarded to prevent exploitation or unfair advantage taking. It is claimed that unjust enrichment theory, which is rooted in defective consent, cannot explain the fact that in many of these cases the promisor (or transferor) did consent. In reply to the objection that no ‘actively’ exploitative behaviour is involved in some of these cases, the chapter claims that exploitation has a ‘passive’ form which involves the retention of benefits in circumstances where the promisee becomes aware that their receipt of them was unfair. This leads to the chapter's most provocative claim, that a ‘defendant-sided’ analysis is available for unjust enrichment's core case, the mistaken payment. The chapter concludes by considering the consequences of this analysis for substantive fairness, change of position, corrective justice theory and the morality of the duty to make restitution.Less
This chapter claims that unconscionability and its cognate exploitation offer a plausible account of the duty to make restitution particularly in the context of undue influence and unconscionable dealing. It begins by claiming that the application criteria of the undue influence and unconscionable dealing doctrines, judicial language, and the facts and outcomes of these cases support the view that restitution is awarded to prevent exploitation or unfair advantage taking. It is claimed that unjust enrichment theory, which is rooted in defective consent, cannot explain the fact that in many of these cases the promisor (or transferor) did consent. In reply to the objection that no ‘actively’ exploitative behaviour is involved in some of these cases, the chapter claims that exploitation has a ‘passive’ form which involves the retention of benefits in circumstances where the promisee becomes aware that their receipt of them was unfair. This leads to the chapter's most provocative claim, that a ‘defendant-sided’ analysis is available for unjust enrichment's core case, the mistaken payment. The chapter concludes by considering the consequences of this analysis for substantive fairness, change of position, corrective justice theory and the morality of the duty to make restitution.
Jennifer K. Robbennolt and Valerie P. Hans
- Published in print:
- 2016
- Published Online:
- May 2017
- ISBN:
- 9780814724941
- eISBN:
- 9780814724712
- Item type:
- book
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814724941.001.0001
- Subject:
- Psychology, Social Psychology
Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge ...
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Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge collapses, adverse reactions to a medication, bar fights, oil spills, and more all implicate the law of torts. The rules and procedures by which tort cases are resolved engage deeply-held intuitions about justice, causation, intentionality, and the obligations that we owe to one another. Tort rules and procedures also generate significant controversy—most visibly in political debates over tort reform. The Psychology of Tort Law explores tort law through the lens of psychological science. Drawing on a wealth of psychological research and their own experiences teaching and researching tort law, Jennifer K. Robbennolt and Valerie P. Hans examine the psychological assumptions that underlie doctrinal rules and tort law practice. They explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants, examining how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law. They show how the judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law. Robbennolt and Hans here shed fascinating light on the tort system, and on the psychological dynamics which undergird its functioning.Less
Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge collapses, adverse reactions to a medication, bar fights, oil spills, and more all implicate the law of torts. The rules and procedures by which tort cases are resolved engage deeply-held intuitions about justice, causation, intentionality, and the obligations that we owe to one another. Tort rules and procedures also generate significant controversy—most visibly in political debates over tort reform. The Psychology of Tort Law explores tort law through the lens of psychological science. Drawing on a wealth of psychological research and their own experiences teaching and researching tort law, Jennifer K. Robbennolt and Valerie P. Hans examine the psychological assumptions that underlie doctrinal rules and tort law practice. They explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants, examining how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law. They show how the judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law. Robbennolt and Hans here shed fascinating light on the tort system, and on the psychological dynamics which undergird its functioning.
Gideon Yaffe
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195381641
- eISBN:
- 9780199864911
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195381641.003.0017
- Subject:
- Psychology, Cognitive Psychology
This chapter explains the meaning and explores the historical sources of the voluntary act requirement in law. It argues that in many ways, even incorporating Libet's discoveries, there is no reason ...
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This chapter explains the meaning and explores the historical sources of the voluntary act requirement in law. It argues that in many ways, even incorporating Libet's discoveries, there is no reason to think that defendants generally fail to match the picture we find in the law. It suggests how further empirical work can help us to develop clarity on the question.Less
This chapter explains the meaning and explores the historical sources of the voluntary act requirement in law. It argues that in many ways, even incorporating Libet's discoveries, there is no reason to think that defendants generally fail to match the picture we find in the law. It suggests how further empirical work can help us to develop clarity on the question.
Kate Waterhouse
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780719095276
- eISBN:
- 9781781707548
- Item type:
- book
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719095276.001.0001
- Subject:
- Sociology, Law, Crime and Deviance
For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved ...
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For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved observing hundreds of cases, aims to demystify the mayhem and provide the reader with descriptions of language, participant discourse and procedure in criminal cases. The book also captures an important change in the District Court: the advent of the immigrant or the Limited-English-proficient (LEP) defendant. It traces the rise of these defendants and explores the issues involved in ensuring access to justice across languages. It also provides an original description of LEP defendants and interpreters in District Court proceedings, ultimately considering how they have altered the District Court as an institution and how the characteristics of the District Court affect the ability of limited English proficient defendants to access justice at this level of the Irish courts system.Less
For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved observing hundreds of cases, aims to demystify the mayhem and provide the reader with descriptions of language, participant discourse and procedure in criminal cases. The book also captures an important change in the District Court: the advent of the immigrant or the Limited-English-proficient (LEP) defendant. It traces the rise of these defendants and explores the issues involved in ensuring access to justice across languages. It also provides an original description of LEP defendants and interpreters in District Court proceedings, ultimately considering how they have altered the District Court as an institution and how the characteristics of the District Court affect the ability of limited English proficient defendants to access justice at this level of the Irish courts system.
Wendie E Schneider
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300125665
- eISBN:
- 9780300216554
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300125665.001.0001
- Subject:
- History, British and Irish Modern History
Engines of Truth explores the history of nineteenth-century British trial procedure from the novel viewpoint of efforts to control perjury. Perjury emerged as an acute problem in the Victorian era: ...
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Engines of Truth explores the history of nineteenth-century British trial procedure from the novel viewpoint of efforts to control perjury. Perjury emerged as an acute problem in the Victorian era: new rules allowed many more witnesses to testify, increasing the opportunities for deceit; a broader cultural emphasis on sincerity and truth-telling made the threat seem even greater. Engines of Truth traces the experiments pursued to control witnesses’ truthfulness, from criminal prosecutions and increased reliance on cross-examination, to shame sanctions in British India and inquisitorial investigation in the new Divorce Court. Blending legal, social and colonial history, it employs a broad array of sources, including colonial archival material, provincial newspaper coverage, home office records, literary sources, and legislative records. Engines of Truth concludes with a new look at the pivotal 1898 Criminal Evidence Act in Britain, which allowed criminal defendants to testify on oath, placing that Act within the context of a history of sexual scandals that played out in Victorian courtrooms. While many of the experiments it describes failed, the process of innovation this book charts shaped modern trial procedure. Both the United States and the United Kingdom rely heavily on cross-examination as the main test of witness truthfulness, a by-product of this experimentation. In American law, cross-examination is still described as the “greatest legal engine ever invented for the discovery of truth;” this book provides a new understanding of the complex process that led to its ascendency.Less
Engines of Truth explores the history of nineteenth-century British trial procedure from the novel viewpoint of efforts to control perjury. Perjury emerged as an acute problem in the Victorian era: new rules allowed many more witnesses to testify, increasing the opportunities for deceit; a broader cultural emphasis on sincerity and truth-telling made the threat seem even greater. Engines of Truth traces the experiments pursued to control witnesses’ truthfulness, from criminal prosecutions and increased reliance on cross-examination, to shame sanctions in British India and inquisitorial investigation in the new Divorce Court. Blending legal, social and colonial history, it employs a broad array of sources, including colonial archival material, provincial newspaper coverage, home office records, literary sources, and legislative records. Engines of Truth concludes with a new look at the pivotal 1898 Criminal Evidence Act in Britain, which allowed criminal defendants to testify on oath, placing that Act within the context of a history of sexual scandals that played out in Victorian courtrooms. While many of the experiments it describes failed, the process of innovation this book charts shaped modern trial procedure. Both the United States and the United Kingdom rely heavily on cross-examination as the main test of witness truthfulness, a by-product of this experimentation. In American law, cross-examination is still described as the “greatest legal engine ever invented for the discovery of truth;” this book provides a new understanding of the complex process that led to its ascendency.
Julie Hardwick
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199558070
- eISBN:
- 9780191721038
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199558070.003.0003
- Subject:
- History, European Early Modern History
This chapter explores the legal lives of working families in the 17th century. It uses marital litigation as a case study to interrogate the practical impact of institutional complexity by exploring ...
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This chapter explores the legal lives of working families in the 17th century. It uses marital litigation as a case study to interrogate the practical impact of institutional complexity by exploring how people dealt with similar problems in different jurisdictions, and examines similarities and differences in men and women's options, experiences, and uses of the courts. It demonstrates how litigation was indisputably a popular phenomenon in two key senses: not only did enormous and increasing numbers of people experience court proceedings whether as plaintiffs, defendants, or witnesses, but participants in litigation in courts of first instance were all far more likely to be from the ranks of working families broadly defined than from elites. Their practice with legal process provided a key resource for early modern urban families to use in managing many aspects of their lives. Going to court was an accessible and indispensable element of family business.Less
This chapter explores the legal lives of working families in the 17th century. It uses marital litigation as a case study to interrogate the practical impact of institutional complexity by exploring how people dealt with similar problems in different jurisdictions, and examines similarities and differences in men and women's options, experiences, and uses of the courts. It demonstrates how litigation was indisputably a popular phenomenon in two key senses: not only did enormous and increasing numbers of people experience court proceedings whether as plaintiffs, defendants, or witnesses, but participants in litigation in courts of first instance were all far more likely to be from the ranks of working families broadly defined than from elites. Their practice with legal process provided a key resource for early modern urban families to use in managing many aspects of their lives. Going to court was an accessible and indispensable element of family business.
Julie Hardwick
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199558070
- eISBN:
- 9780191721038
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199558070.003.0004
- Subject:
- History, European Early Modern History
This chapter explores working people's legal lives as key participants in the grassroots forums that is termed in this book litigation communities, in which many kinds of challenges were negotiated. ...
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This chapter explores working people's legal lives as key participants in the grassroots forums that is termed in this book litigation communities, in which many kinds of challenges were negotiated. If we expand our thinking about litigation, past plaintiffs' complaints, and judges' sentences, to focus on unpacking a legal process in which many purposes and parties were involved, we find a commonplace, effective interstitial forum in which an unusually broad range of voices could make themselves heard. The judicial system promised a potential means through which an early modern government could hope to exert some authority over its subjects, whether in promoting particular values or in managing strife; but the practice of litigation offered the prospect of participation for a wide range of people in negotiating the parameters of a wide range of issues, whether as litigants, defendants, witnesses, or observers.Less
This chapter explores working people's legal lives as key participants in the grassroots forums that is termed in this book litigation communities, in which many kinds of challenges were negotiated. If we expand our thinking about litigation, past plaintiffs' complaints, and judges' sentences, to focus on unpacking a legal process in which many purposes and parties were involved, we find a commonplace, effective interstitial forum in which an unusually broad range of voices could make themselves heard. The judicial system promised a potential means through which an early modern government could hope to exert some authority over its subjects, whether in promoting particular values or in managing strife; but the practice of litigation offered the prospect of participation for a wide range of people in negotiating the parameters of a wide range of issues, whether as litigants, defendants, witnesses, or observers.
Kathleen M. Moore
- Published in print:
- 2002
- Published Online:
- October 2011
- ISBN:
- 9780195148053
- eISBN:
- 9780199849277
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195148053.003.0013
- Subject:
- Religion, Islam
In decoding critical moments in American justice, one could make various observations about the mixed sources of justice which are operative in the transaction between the condemned and the judge. ...
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In decoding critical moments in American justice, one could make various observations about the mixed sources of justice which are operative in the transaction between the condemned and the judge. The argument would essentialize identity, positing that the judge, in an example given in this chapter, a man of Irish-American descent who grew up in the Bronx, and the defendant, a Middle Easterner of Islamic faith, were incapable of transcending their fixed “essences”, hedged in by their respective cultures, as well as by their respective roles as judge and defendant. However partial or imperfect it is, though, the judicial demarcation of what constitutes “Islam” enters into the political environment to join other sources of “knowledge” about to shape ideas about Islam and to give meaning to what Islam represents in the new world order. Islam, in effect, is reconstructed discursively through its encounter with America's judicial system into terms that make sense for the law's secular system of meaning.Less
In decoding critical moments in American justice, one could make various observations about the mixed sources of justice which are operative in the transaction between the condemned and the judge. The argument would essentialize identity, positing that the judge, in an example given in this chapter, a man of Irish-American descent who grew up in the Bronx, and the defendant, a Middle Easterner of Islamic faith, were incapable of transcending their fixed “essences”, hedged in by their respective cultures, as well as by their respective roles as judge and defendant. However partial or imperfect it is, though, the judicial demarcation of what constitutes “Islam” enters into the political environment to join other sources of “knowledge” about to shape ideas about Islam and to give meaning to what Islam represents in the new world order. Islam, in effect, is reconstructed discursively through its encounter with America's judicial system into terms that make sense for the law's secular system of meaning.
