Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.003.0004
- Subject:
- Law, Criminal Law and Criminology
This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal ...
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This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.Less
This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.
Keith Hawkins
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199243891
- eISBN:
- 9780191714184
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243891.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This is a book about the life of the legal system. Its object is to illustrate a way of thinking about decision-making using the example of prosecution cases in a regulatory agency. The study focuses ...
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This is a book about the life of the legal system. Its object is to illustrate a way of thinking about decision-making using the example of prosecution cases in a regulatory agency. The study focuses on the processes of the law, rather than occupational health and safety regulation per se, for the way in which prosecution is used in the enforcement of regulation reflects processes generally observable in the legal system. The book addresses the creation and shaping of legal cases and their attrition, and the processes involved in prosecuting. It develops and applies a theory of decision-making, connecting broad features in the environment of a legal bureaucracy with the details of decisions made in individual cases. What are the conditions under which legal officials elect the public and consequential course of prosecution? Using a naturalistic approach, a detailed, multilevel analysis is made of the ways in which regulatory officials respond to a range of events arising from activities in the workplace that have resulted in death or injury, and the ways in which these officials handle occupational risks. Such matters are not often the stuff of criminal trial. The book shows that the moral status of violations is central to the decision to prosecute, set in the context of the moral and political ambivalence within which regulatory agencies work. It argues that this ambivalence leads to a particular level of prosecution and determines the kinds of case that are selected for prosecution. The book is therefore a study in the use of discretion by legal actors.Less
This is a book about the life of the legal system. Its object is to illustrate a way of thinking about decision-making using the example of prosecution cases in a regulatory agency. The study focuses on the processes of the law, rather than occupational health and safety regulation per se, for the way in which prosecution is used in the enforcement of regulation reflects processes generally observable in the legal system. The book addresses the creation and shaping of legal cases and their attrition, and the processes involved in prosecuting. It develops and applies a theory of decision-making, connecting broad features in the environment of a legal bureaucracy with the details of decisions made in individual cases. What are the conditions under which legal officials elect the public and consequential course of prosecution? Using a naturalistic approach, a detailed, multilevel analysis is made of the ways in which regulatory officials respond to a range of events arising from activities in the workplace that have resulted in death or injury, and the ways in which these officials handle occupational risks. Such matters are not often the stuff of criminal trial. The book shows that the moral status of violations is central to the decision to prosecute, set in the context of the moral and political ambivalence within which regulatory agencies work. It argues that this ambivalence leads to a particular level of prosecution and determines the kinds of case that are selected for prosecution. The book is therefore a study in the use of discretion by legal actors.
Neil Duxbury
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264910
- eISBN:
- 9780191682865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264910.003.0005
- Subject:
- Law, Philosophy of Law
This chapter illustrates that the quest for principle in American jurisprudence ought not to be regarded merely as a response to realism. It specifically attempts to make sense of process ...
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This chapter illustrates that the quest for principle in American jurisprudence ought not to be regarded merely as a response to realism. It specifically attempts to make sense of process jurisprudence. It needs to determine the emergence of another basic concept in American legal thought: the concept of principle. Henry Hart and Albert Sacks' The Legal Process is the classic text of post-war process jurisprudence. Policies may be good or bad; but principles of constitutional law ought to be neutral. The discussions on the jurisprudence of prudence and the persistence of process are offered. It also draws the evolution of process thinking in American jurisprudence. In drawing this evolution, it shows how the theme of reason has acquired near-paradigmatic status in American legal thought.Less
This chapter illustrates that the quest for principle in American jurisprudence ought not to be regarded merely as a response to realism. It specifically attempts to make sense of process jurisprudence. It needs to determine the emergence of another basic concept in American legal thought: the concept of principle. Henry Hart and Albert Sacks' The Legal Process is the classic text of post-war process jurisprudence. Policies may be good or bad; but principles of constitutional law ought to be neutral. The discussions on the jurisprudence of prudence and the persistence of process are offered. It also draws the evolution of process thinking in American jurisprudence. In drawing this evolution, it shows how the theme of reason has acquired near-paradigmatic status in American legal thought.
Fionnuala Ní Aoláin, Dina Francesca Haynes, and Naomi Cahn
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780195396645
- eISBN:
- 9780199918416
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195396645.003.0000
- Subject:
- Law, Human Rights and Immigration, Public International Law
This introductory chapter first sets out the purpose of the book, which is to explore the role that gender plays in the construction and implementation of the post-conflict transitional process. The ...
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This introductory chapter first sets out the purpose of the book, which is to explore the role that gender plays in the construction and implementation of the post-conflict transitional process. The specific intention is to probe how women fare and to articulate the views given in this book on how various legal and political processes might work better for women. The remainder of the chapter presents some key ideas that frame the overall analysis. Section one sets out the framework utilized to address the legal and political processes that are typically harnessed to subdue conflict. Section two provides a critique of gender mainstreaming and articulates the concept of gender centrality—the application of which might be a means to recalibrate post-conflict processes to better accommodate women’s needs and interests. Section three concludes with an overview of the relevant and developing international legal norms that directly address the roles and rights of women in post-conflict political processes.Less
This introductory chapter first sets out the purpose of the book, which is to explore the role that gender plays in the construction and implementation of the post-conflict transitional process. The specific intention is to probe how women fare and to articulate the views given in this book on how various legal and political processes might work better for women. The remainder of the chapter presents some key ideas that frame the overall analysis. Section one sets out the framework utilized to address the legal and political processes that are typically harnessed to subdue conflict. Section two provides a critique of gender mainstreaming and articulates the concept of gender centrality—the application of which might be a means to recalibrate post-conflict processes to better accommodate women’s needs and interests. Section three concludes with an overview of the relevant and developing international legal norms that directly address the roles and rights of women in post-conflict political processes.
Neil Duxbury
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198268253
- eISBN:
- 9780191683466
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268253.001.0001
- Subject:
- Law, Philosophy of Law
Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in ...
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Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilising a variety of disciplines and materials, the book considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.Less
Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilising a variety of disciplines and materials, the book considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.
D. J. Galligan
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198256762
- eISBN:
- 9780191681660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256762.003.0004
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter analyses the notion of participation in its legal and political contexts. First, it considers participation in legal and administrative processes. It then explores the main ideas on ...
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This chapter analyses the notion of participation in its legal and political contexts. First, it considers participation in legal and administrative processes. It then explores the main ideas on participation found in the literature of political theory. Finally, the social basis of participation is considered, and some of the practical issues highlighted.Less
This chapter analyses the notion of participation in its legal and political contexts. First, it considers participation in legal and administrative processes. It then explores the main ideas on participation found in the literature of political theory. Finally, the social basis of participation is considered, and some of the practical issues highlighted.
Carrie Menkel-Meadow
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199272235
- eISBN:
- 9780191699603
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199272235.003.0033
- Subject:
- Law, Philosophy of Law
This chapter is concerned with the treatment of law and legal negotiation in popular culture. It suggests that popular depictions of adversarial and competitive negotiations dangerously perpetuate ...
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This chapter is concerned with the treatment of law and legal negotiation in popular culture. It suggests that popular depictions of adversarial and competitive negotiations dangerously perpetuate the notion that legal negotiations are about winning of bettering the other side. It decentres the trial and courtroom as the central locus of where justice and legal process if depicted in popular culture and encourages creators of popular culture to take a closer look at how negotiations are evolving to solve problems.Less
This chapter is concerned with the treatment of law and legal negotiation in popular culture. It suggests that popular depictions of adversarial and competitive negotiations dangerously perpetuate the notion that legal negotiations are about winning of bettering the other side. It decentres the trial and courtroom as the central locus of where justice and legal process if depicted in popular culture and encourages creators of popular culture to take a closer look at how negotiations are evolving to solve problems.
Jennifer Temkin
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780198763550
- eISBN:
- 9780191710391
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198763550.001.0001
- Subject:
- Law, Criminal Law and Criminology
Public disquiet has been intermittently but vehemently expressed about the crime of rape and the way it is handled by the criminal justice system. But in the 21st century the legal process still ...
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Public disquiet has been intermittently but vehemently expressed about the crime of rape and the way it is handled by the criminal justice system. But in the 21st century the legal process still fails to provide an adequate response to sexual violation and abuse. This book examines some of the difficulties which this crime presents and analyses in detail how the legal system could and should be addressing them. Central issues considered include the experience of rape victims, their treatment by the police and the courts, and the inadequacies of the present law and the rules of evidence surrounding it. Changes enacted in many different jurisdictions, such as schemes for legal representation for victims of sexual violence are evaluated.Less
Public disquiet has been intermittently but vehemently expressed about the crime of rape and the way it is handled by the criminal justice system. But in the 21st century the legal process still fails to provide an adequate response to sexual violation and abuse. This book examines some of the difficulties which this crime presents and analyses in detail how the legal system could and should be addressing them. Central issues considered include the experience of rape victims, their treatment by the police and the courts, and the inadequacies of the present law and the rules of evidence surrounding it. Changes enacted in many different jurisdictions, such as schemes for legal representation for victims of sexual violence are evaluated.
D. J. Galligan
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198256762
- eISBN:
- 9780191681660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256762.003.0017
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within ...
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This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within which different types of legal processes can be identified and where notions such as procedural rights, process values, the worth of participation, and the problems of costs can be discussed.Less
This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within which different types of legal processes can be identified and where notions such as procedural rights, process values, the worth of participation, and the problems of costs can be discussed.
Louise Nash, Michele Daly, Elizabeth Van Ekert, and Patrick Kelly
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780195383263
- eISBN:
- 9780199344871
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195383263.003.0008
- Subject:
- Social Work, Health and Mental Health
Adverse outcomes happen in health care, regardless of intent and quality of care provided. Patients may be harmed, or experience inadequate treatment, or be dissatisfied, causing them to seek redress ...
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Adverse outcomes happen in health care, regardless of intent and quality of care provided. Patients may be harmed, or experience inadequate treatment, or be dissatisfied, causing them to seek redress through medico-legal processes against the doctor. In Australia, formal complaint mechanisms operate in all Australian states and territories, and a complaint to one of these complaint bodies is common. Patients also seek compensation as a result of medical negligence claims. A minority of patients claim for compensation when there has been no wrongful treatment or when there is found to be no cause for complaint. Bad outcomes cause distress for all concerned, not only for the patient and patient’s family, but also the doctor and doctor’s family. The medico-legal processes of complaints, claims, and inquiries that can follow can be distressing for the doctor regardless of the cause or the outcome. This chapter explores the impact the medico-legal process has on the health and well-being of the doctor and the impact on the doctor’s practice of medicine, including the way they relate to patients.Less
Adverse outcomes happen in health care, regardless of intent and quality of care provided. Patients may be harmed, or experience inadequate treatment, or be dissatisfied, causing them to seek redress through medico-legal processes against the doctor. In Australia, formal complaint mechanisms operate in all Australian states and territories, and a complaint to one of these complaint bodies is common. Patients also seek compensation as a result of medical negligence claims. A minority of patients claim for compensation when there has been no wrongful treatment or when there is found to be no cause for complaint. Bad outcomes cause distress for all concerned, not only for the patient and patient’s family, but also the doctor and doctor’s family. The medico-legal processes of complaints, claims, and inquiries that can follow can be distressing for the doctor regardless of the cause or the outcome. This chapter explores the impact the medico-legal process has on the health and well-being of the doctor and the impact on the doctor’s practice of medicine, including the way they relate to patients.
T R S Allan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199670024
- eISBN:
- 9780191749414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670024.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political ...
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This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.Less
This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.
Amos N. Guiora
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195340310
- eISBN:
- 9780199867226
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340310.003.0003
- Subject:
- Law, Human Rights and Immigration, Constitutional and Administrative Law
One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. ...
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One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. Although not a perfect solution to a complicated problem, the hybrid paradigm proposes an alternative that addresses the dilemma of how to balance legitimate civil and political rights of the individual with the equally legitimate national security rights of the state. Accordingly, the detainee held by the US in Guantanamo Bay and similar facilities will be granted certain constitutional rights, in particular those based on the Fifth, Eighth, and Fourteenth Amendments. The operative words in this chapter are granting certain rights to non-Americans held by the United States outside the United States. Such an analysis facilitates an examination of whether the proposal sufficiently protects the rights of those it presumes are a constitutionally protected class.Less
One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. Although not a perfect solution to a complicated problem, the hybrid paradigm proposes an alternative that addresses the dilemma of how to balance legitimate civil and political rights of the individual with the equally legitimate national security rights of the state. Accordingly, the detainee held by the US in Guantanamo Bay and similar facilities will be granted certain constitutional rights, in particular those based on the Fifth, Eighth, and Fourteenth Amendments. The operative words in this chapter are granting certain rights to non-Americans held by the United States outside the United States. Such an analysis facilitates an examination of whether the proposal sufficiently protects the rights of those it presumes are a constitutionally protected class.
June Luchjenbroers and Michelle Aldridge-Waddon
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673667
- eISBN:
- 9780191751769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673667.003.0129
- Subject:
- Law, Comparative Law, Philosophy of Law
This chapter takes issue with the procedural amendments made in the England and Wales legal system regarding how children need to be treated by the police and in court, referred to in the Memorandum ...
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This chapter takes issue with the procedural amendments made in the England and Wales legal system regarding how children need to be treated by the police and in court, referred to in the Memorandum of Good Practice (1992), and the subsequent replacements: Achieving Best Evidence (2002, 2004, 2007, and 2011). The primary objective of the policy changes was to enhance justice for all, without terrorizing those most vulnerable to the inquisitorial process. However, while the amendments have been successful in minimizing the terror experienced by children in the legal process, resulting in more detailed and reliable testimonies, it is also arguable that justice is still likely to be out of reach for these vulnerable witnesses, as they do not have the linguistic skills needed to utilize appropriately the invitation to ‘tell their own story’, and they don't always have the social skills necessary to comprehend what is being said to them. The chapter offers a detailed consideration of children's evidentiary experience and performance, as well as the nature and content of police questioning that also can be harmful to their case. It argues that the initial interview by the police should not be used in court as the victim's Evidence-in-Chief, because the police function of collecting evidence is not consistent with the chief prosecutor's role of putting the victim's ‘best foot forward’ in court. In effect, the current situation requires those recognized by the legal process as ‘vulnerable’ (i.e., dogs who are ‘down’) to build their own case, which even those not recognized as vulnerable would be hard pressed to do appropriately or successfully.Less
This chapter takes issue with the procedural amendments made in the England and Wales legal system regarding how children need to be treated by the police and in court, referred to in the Memorandum of Good Practice (1992), and the subsequent replacements: Achieving Best Evidence (2002, 2004, 2007, and 2011). The primary objective of the policy changes was to enhance justice for all, without terrorizing those most vulnerable to the inquisitorial process. However, while the amendments have been successful in minimizing the terror experienced by children in the legal process, resulting in more detailed and reliable testimonies, it is also arguable that justice is still likely to be out of reach for these vulnerable witnesses, as they do not have the linguistic skills needed to utilize appropriately the invitation to ‘tell their own story’, and they don't always have the social skills necessary to comprehend what is being said to them. The chapter offers a detailed consideration of children's evidentiary experience and performance, as well as the nature and content of police questioning that also can be harmful to their case. It argues that the initial interview by the police should not be used in court as the victim's Evidence-in-Chief, because the police function of collecting evidence is not consistent with the chief prosecutor's role of putting the victim's ‘best foot forward’ in court. In effect, the current situation requires those recognized by the legal process as ‘vulnerable’ (i.e., dogs who are ‘down’) to build their own case, which even those not recognized as vulnerable would be hard pressed to do appropriately or successfully.
Lynn Nadel and Walter P. Sinnott-Armstrong (eds)
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199920754
- eISBN:
- 9780199950133
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199920754.001.0001
- Subject:
- Psychology, Cognitive Neuroscience, Forensic Psychology
The legal system depends upon memory function in a number of critical ways, including the memories of victims; the memories of individuals who witness crimes or other critical events; the memories of ...
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The legal system depends upon memory function in a number of critical ways, including the memories of victims; the memories of individuals who witness crimes or other critical events; the memories of investigators, lawyers and judges engaged in the legal process; and the memories of jurors. How well memory works, how accurate it is, how it is affected by various aspects of the criminal justice system—all these are important questions. This book tackles others as well. Can we tell when someone is reporting an accurate memory? Can we distinguish a true memory from a false one? Can memories be selectively enhanced, or erased? Are memories altered by emotion, by stress, by drugs? This book presents the current state of knowledge among cognitive and neural scientists about memory.Less
The legal system depends upon memory function in a number of critical ways, including the memories of victims; the memories of individuals who witness crimes or other critical events; the memories of investigators, lawyers and judges engaged in the legal process; and the memories of jurors. How well memory works, how accurate it is, how it is affected by various aspects of the criminal justice system—all these are important questions. This book tackles others as well. Can we tell when someone is reporting an accurate memory? Can we distinguish a true memory from a false one? Can memories be selectively enhanced, or erased? Are memories altered by emotion, by stress, by drugs? This book presents the current state of knowledge among cognitive and neural scientists about memory.
Jan Paulsson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199564163
- eISBN:
- 9780191745652
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564163.001.0001
- Subject:
- Law, Company and Commercial Law, Philosophy of Law
What is arbitration? This book provides a novel theoretical examination of the concept of arbitration, attempting to answer fundamental questions which have rarely been addressed systematically in ...
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What is arbitration? This book provides a novel theoretical examination of the concept of arbitration, attempting to answer fundamental questions which have rarely been addressed systematically in English. It explores the place of arbitration in the legal process, offering a challenging overview of the field and its theoretical underpinnings and contending that arbitration is important enough to be understood in its own terms, as a sui generis feature of social life. Why do individuals, companies, and States choose to go to arbitration rather than through litigation? Arbitration can offer increased flexibility and confidentiality, and provides the parties with the opportunity to select the arbitrators. But what makes them want to confide in an arbitrator rather than use the more traditional legal mechanisms for settling disputes? This book explores what the parties can expect of an arbitrator, and whether and how the conduct of an arbitrator might be questioned and under what authority. It examines the ethical challenges to arbitral authority and its moral hazards, evaluating the promises and dangers of self-contained systems of decision-making and compliance.Less
What is arbitration? This book provides a novel theoretical examination of the concept of arbitration, attempting to answer fundamental questions which have rarely been addressed systematically in English. It explores the place of arbitration in the legal process, offering a challenging overview of the field and its theoretical underpinnings and contending that arbitration is important enough to be understood in its own terms, as a sui generis feature of social life. Why do individuals, companies, and States choose to go to arbitration rather than through litigation? Arbitration can offer increased flexibility and confidentiality, and provides the parties with the opportunity to select the arbitrators. But what makes them want to confide in an arbitrator rather than use the more traditional legal mechanisms for settling disputes? This book explores what the parties can expect of an arbitrator, and whether and how the conduct of an arbitrator might be questioned and under what authority. It examines the ethical challenges to arbitral authority and its moral hazards, evaluating the promises and dangers of self-contained systems of decision-making and compliance.
Gregory Messenger
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780198716464
- eISBN:
- 9780191785061
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716464.003.0002
- Subject:
- Law, Public International Law, Company and Commercial Law
This chapter sets out the two principal claims of the book. First, it supports the analysis of international law through a process-based account, specifically one tied to the notion of globalization. ...
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This chapter sets out the two principal claims of the book. First, it supports the analysis of international law through a process-based account, specifically one tied to the notion of globalization. Acknowledging the multiple actors and jurisdictional influences on the development of WTO law in particular necessitates a means to clarify the complex interplay involved. Rejecting the use of empiricist approaches to examining law, the chapter turns to the second claim, that to understand the development of WTO law as a complex process requires the use of a pluralist causal account. The chapter concludes by reframing three common lenses for the analysis of law into causal influences, introducing the three causal categories which are the focus of Chapter 3.Less
This chapter sets out the two principal claims of the book. First, it supports the analysis of international law through a process-based account, specifically one tied to the notion of globalization. Acknowledging the multiple actors and jurisdictional influences on the development of WTO law in particular necessitates a means to clarify the complex interplay involved. Rejecting the use of empiricist approaches to examining law, the chapter turns to the second claim, that to understand the development of WTO law as a complex process requires the use of a pluralist causal account. The chapter concludes by reframing three common lenses for the analysis of law into causal influences, introducing the three causal categories which are the focus of Chapter 3.
Chantal Stebbings
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199264148
- eISBN:
- 9780191698910
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264148.003.0015
- Subject:
- Law, Philosophy of Law
The term ‘officialism’ began to be commonly used and understood in public life in the 1870s. In broad terms, it meant the conduct of affairs by the government. More precisely, it meant either the ...
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The term ‘officialism’ began to be commonly used and understood in public life in the 1870s. In broad terms, it meant the conduct of affairs by the government. More precisely, it meant either the compulsory administration of private affairs by central government, or an inflexible and minute adherence to official systems and procedures, the latter also known as ‘red tapeism’. By the end of the century, it became a disparaging term for bureaucracy. This chapter examines the nature of officialism and the movement against it in selected areas of private legal activity, the reasons for its existence, and the extent to which it affected legislation in those specific instances and legislation in general. It also assesses the wider impact of the movement on legal process in the 19th century.Less
The term ‘officialism’ began to be commonly used and understood in public life in the 1870s. In broad terms, it meant the conduct of affairs by the government. More precisely, it meant either the compulsory administration of private affairs by central government, or an inflexible and minute adherence to official systems and procedures, the latter also known as ‘red tapeism’. By the end of the century, it became a disparaging term for bureaucracy. This chapter examines the nature of officialism and the movement against it in selected areas of private legal activity, the reasons for its existence, and the extent to which it affected legislation in those specific instances and legislation in general. It also assesses the wider impact of the movement on legal process in the 19th century.
Peter Charles Hoffer
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780226614281
- eISBN:
- 9780226614458
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226614458.003.0008
- Subject:
- Law, Legal History
This chapter explores the role, and the reticence, of the legal academic community in the civil rights revolution era. While Alexander Bickel, Herbert Wechsler, Charles Black, Harry Edwards, and ...
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This chapter explores the role, and the reticence, of the legal academic community in the civil rights revolution era. While Alexander Bickel, Herbert Wechsler, Charles Black, Harry Edwards, and Louis Pollak took part, others, like Gerald Gunther and Paul Freund urged caution on the courts and the executive branch. The legal process school raised questions about the reasoning in Brown, and some academics like Robert Bork, Derrick Bell, and Raoul Berger, for disparate reasons, found Brown v. Board wanting. But for legal academics, Brown has become a touchstone. Efforts to "get right" with it still power academic conversations about the role of the courts in society and politics.Less
This chapter explores the role, and the reticence, of the legal academic community in the civil rights revolution era. While Alexander Bickel, Herbert Wechsler, Charles Black, Harry Edwards, and Louis Pollak took part, others, like Gerald Gunther and Paul Freund urged caution on the courts and the executive branch. The legal process school raised questions about the reasoning in Brown, and some academics like Robert Bork, Derrick Bell, and Raoul Berger, for disparate reasons, found Brown v. Board wanting. But for legal academics, Brown has become a touchstone. Efforts to "get right" with it still power academic conversations about the role of the courts in society and politics.
Abdullahi Ahmed An-Na‘im
- Published in print:
- 2014
- Published Online:
- January 2014
- ISBN:
- 9780199895694
- eISBN:
- 9780199350742
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199895694.003.0004
- Subject:
- Religion, Islam
This chapter examines the legal dimensions of religious self-determination for American Muslims who want to embrace their American citizenship. It analyzes key aspects of the legal process in ...
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This chapter examines the legal dimensions of religious self-determination for American Muslims who want to embrace their American citizenship. It analyzes key aspects of the legal process in relation to how American Muslims can proactively participate in defining and participating in what it means to be American as well as what it means to be a Muslim. It suggests that the legal dimensions of religious self-determination are necessarily informed by the relationship between religion and the state, including its constitutional framework. This article also discusses the principles of the relationship between religion and state in the US Constitution and Bill of Rights, which state that there should be no established state religion, that there should be no religious test for public office, and that freedom of religious practice must be protected.Less
This chapter examines the legal dimensions of religious self-determination for American Muslims who want to embrace their American citizenship. It analyzes key aspects of the legal process in relation to how American Muslims can proactively participate in defining and participating in what it means to be American as well as what it means to be a Muslim. It suggests that the legal dimensions of religious self-determination are necessarily informed by the relationship between religion and the state, including its constitutional framework. This article also discusses the principles of the relationship between religion and state in the US Constitution and Bill of Rights, which state that there should be no established state religion, that there should be no religious test for public office, and that freedom of religious practice must be protected.
K. Hawkins
- Published in print:
- 1998
- Published Online:
- March 2012
- ISBN:
- 9780198765295
- eISBN:
- 9780191695292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198765295.003.0010
- Subject:
- Law, Philosophy of Law
This chapter puts forward a different view about the strategies employed in enforcing regulation, emphasizing the role of formal legal processes. It argues that regulatory enforcement is a symbolic ...
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This chapter puts forward a different view about the strategies employed in enforcing regulation, emphasizing the role of formal legal processes. It argues that regulatory enforcement is a symbolic matter, reflecting the conjunction of privately-held values with organizational interests in enforcing a secular code of conduct about which there is a high degree of social and political ambivalence. It emphasizes that the discussion is about regulatory enforcement strategies in general, even though the focus is on prosecution for convenience. Any treatment of the problem must address two questions. First, what prompts the level of prosecutions mounted? Second, what are the properties which mark out certain cases as worth prosecuting?Less
This chapter puts forward a different view about the strategies employed in enforcing regulation, emphasizing the role of formal legal processes. It argues that regulatory enforcement is a symbolic matter, reflecting the conjunction of privately-held values with organizational interests in enforcing a secular code of conduct about which there is a high degree of social and political ambivalence. It emphasizes that the discussion is about regulatory enforcement strategies in general, even though the focus is on prosecution for convenience. Any treatment of the problem must address two questions. First, what prompts the level of prosecutions mounted? Second, what are the properties which mark out certain cases as worth prosecuting?
