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International Law Enforcement

Karen J. Alter

in The New Terrain of International Law: Courts, Politics, Rights

This chapter presents four case studies covering all of the substantive domains in which international courts operate. The case studies show World Trade Organization (WTO) litigation pressuring the ... More

This chapter presents four case studies covering all of the substantive domains in which international courts operate. The case studies show World Trade Organization (WTO) litigation pressuring the US Congress to change a tax policy that promoted US exports; the Andean Tribunal facilitating a retreat on the issuing of “second use patents”; and the Community Court of the Economic Community of West African States (ECOWAS) leading Niger to compensate Hadijatou Mani for enslavement in the customary family law system, as well as the indictment and arrest of Charles Taylor for crimes committed in a neighboring country. In all of these case studies, the ability of ICs to offer a remedy mobilized litigants, and ICs' rulings constructed focal remedies that compliance supporters could demand.Less

‘… With a view to despatch and the saving of expense’. 1 How the Commercial Court has attempted to meet the demands of the business community for efficient and cost-effective litigation procedures. 2

Richard Aikens

in Tom Bingham and the Transformation of the Law: A Liber Amicorum

This chapter discusses the historical development of the Commercial Court procedures, how they have adjusted to the needs of the commercial actors, and how they must keep to attempt to meet the needs ... More

This chapter discusses the historical development of the Commercial Court procedures, how they have adjusted to the needs of the commercial actors, and how they must keep to attempt to meet the needs of commercial litigants.Less

Introduction

William M. Richman and William L. Reynolds

in Injustice On Appeal: The United States Courts of Appeals in Crisis

This introductory chapter sets out the book's focus, namely the deterioration of the U.S. Courts of Appeals. These courts decide over fifty thousand cases per year, out of which the Supreme Court ... More

This introductory chapter sets out the book's focus, namely the deterioration of the U.S. Courts of Appeals. These courts decide over fifty thousand cases per year, out of which the Supreme Court usually chooses to review fewer than one hundred. Thus, from the litigant's point of view, the decisions of the Courts of Appeals are, for all practical purposes, final—the last stop in the judicial system. While any significant change in so important an institution would be noteworthy, the change that this book treats is remarkable for additional reasons. First, it happened so quickly—over a span of only thirty years, one legal generation. Second, the shift occurred entirely at the impetus of the courts themselves, with no executive and very little legislative input. In other words, the radical shift is entirely of the judges' making. The third reason flows from the second; when stripped of all rhetoric, the reason for the change in the circuit courts is that the judges prefer the new arrangement. The fourth reason is that the change in the courts of appeals represents a major reallocation of government benefits, draining them from the routine middle-class litigants and lavishing them on the wealthiest and most powerful litigants. Finally, the revolution has attracted little attention from the legal profession and even less from the public and, amazingly, even less from the judges themselves. An overview of the subsequent chapters is also presented.Less

“Ynuvaciones malas e rreprouadas”: Seeking Justice in Early Colonial Pueblos de Indios

Karen B. Graubart

in Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America

Graubart’s essay explores the ways indigenous litigants in and near Lima sought to preserve notions of justice amid the novelty of Spanish law and the pressures of Spanish colonization. She argues ... More

Graubart’s essay explores the ways indigenous litigants in and near Lima sought to preserve notions of justice amid the novelty of Spanish law and the pressures of Spanish colonization. She argues that customary practices, rooted in precontact legality, became interdependent with Spanish law, leading Indian leaders to become skilled at managing a zone of legal “entanglement” that was anything but fixed and certain. Graubart uses wills, as well as Native regulation of agricultural leases, urban residences, and wage labor, to discuss labor, property, and resource management to reveal how Spanish law became intelligible to Andean litigants, who operated through mixed legal languages that allowed them to maintain ideas of justice under colonial rule.Less

Restructuring the Courts: Public Interest Litigation in the Indian Courts 1

Sandra Fredman

in Human Rights Transformed: Positive Rights and Positive Duties

Even if courts can play a legitimate democratic role through positive human rights adjudication, they remain limited by their institutional structure, and particularly, the adversarial, passive, and ... More

Even if courts can play a legitimate democratic role through positive human rights adjudication, they remain limited by their institutional structure, and particularly, the adversarial, passive, and retrospective nature of the litigation process. However, there is no reason why the process cannot be adapted. The most sophisticated set of adaptations has been undertaken by the Indian Supreme Court. By recognizing the inherent inequalities in the adversarial court system, the Court has adapted its processes so that the voices of the poor and disadvantaged can be heard. This entails a series of radical adaptations: widening standing to anyone litigating in the public interest; instituting court-initiated fact finding; issuing mandatory orders which give the Court ongoing supervisory powers, and monitoring the implementation of those orders. The chapter critically assesses the Court's role with a view to establishing a model for adapting the competences of courts to address socio-economic rights.Less

EXPECTATIONS, OUTCOMES, AND FAIRNESS: LESSONS FROM THE CIVIL JUSTICE REFORM ACT EVALUATION

Stephen Carroll and Joseph W. Doherty

in Confidentiality, Transparency, and the U.S. Civil Justice System

This chapter examines how and why litigant attitudes toward the civil justice system might be changed by participation in a court case. Specifically, it tests how expectations and outcomes relate to ... More

This chapter examines how and why litigant attitudes toward the civil justice system might be changed by participation in a court case. Specifically, it tests how expectations and outcomes relate to perceptions of procedural fairness among litigants in Federal District Court. It uses the litigant and attorney surveys from the Civil Justice Reform Act Evaluation to calculate the differences between the actual monetary awards and the expected best and worst monetary awards in each case. The difference between expectations and outcomes is then compared to another survey question about the perceived fairness of the court procedures. It is hypothesized that these differences are significantly correlated with a drop in perceived fairness in the system, and that this perception is correlated with confidence in the courts.Less

Enhancing Federal Enforcement

Daniel A. Crane

in The Institutional Structure of Antitrust Enforcement

This chapter considers ways to enhance the enforcement powers of the two agencies: the Federal Trade Commission (FTC) and the Antitrust Division, without changing the institutional status quo. It ... More

This chapter considers ways to enhance the enforcement powers of the two agencies: the Federal Trade Commission (FTC) and the Antitrust Division, without changing the institutional status quo. It turns out that the FTC has more to say than the Antitrust Division. There is more latitude for experimentation here. Primarily this concerns the improvements on the norm-creation capabilities and powers in relation to the roles of institutional players such as generalist judges, private litigants, and the juries. The FTC is analyzed as a distinct antitrust institution but the judicial deference raises issues not distinctive to the FTC, rather they are a part of the broader fabric of administrative law.Less

The Cumulative Effect of the Appellate Triage Regime

William M. Richman and William L. Reynolds

in Injustice On Appeal: The United States Courts of Appeals in Crisis

This chapter considers the cumulative cost of implementing the entire Appellate Triage regime. It argues that the courts have transformed themselves in the teeth of their enabling statute from courts ... More

This chapter considers the cumulative cost of implementing the entire Appellate Triage regime. It argues that the courts have transformed themselves in the teeth of their enabling statute from courts of mandatory jurisdiction to certiorari courts. That is a change of major proportion. Despite the statutory guarantee, average litigants are denied a meaningful mandatory appeal heard by the judges, and instead must petition the staff to have their cases included in the select few that receive the traditional appellate treatment and the attention of the judges. The chapter also notes that the impact of the expediting devices is not class neutral; it falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the “big” cases brought by or against the government or major private economic actors.Less

Stress, Trauma, and Wellbeing in the Legal System: An Overview

Monica K. Miller and Brian H. Bornstein

in Stress, Trauma, and Wellbeing in the Legal System

All individuals face stress in daily life; this may be particularly true for those who enforce the law, administer justice or are forced into the legal system. Stress can result in negative ... More

All individuals face stress in daily life; this may be particularly true for those who enforce the law, administer justice or are forced into the legal system. Stress can result in negative behaviors, burnout, reduced efficiency, risk-taking or a range of physical and psychological symptoms. This introductory chapter overviews the main purpose of the book, which is to present theory, research, and scholarship from various disciplines and offer suggestions for those interested in exploring and improving the wellbeing of those who are voluntarily (police, probation officers, litigants, lawyers, judges, etc.) or involuntarily (jurors, civil litigants, criminal defendants, witnesses, etc.) drawn into the legal system. Further, as outlined in the chapter, the book focuses on both negative and positive aspects of wellbeing in order to provide a broad perspective on wellbeing in the legal system. This approach offers insights into how individuals can change the legal system on both an individual basis and on a macro level.Less

Civil Plaintiffs, Trauma, and Stress in the Legal System

Mary White Stewart and Steven M. Wood

in Stress, Trauma, and Wellbeing in the Legal System

There appears to be a prevalent notion that the United States is a highly litigious society, and that individuals sue without considering the tangible and intangible costs of litigation. Such ... More

There appears to be a prevalent notion that the United States is a highly litigious society, and that individuals sue without considering the tangible and intangible costs of litigation. Such perceptions are one of the many stressors that litigants face. Social scientists and legal researchers are gaining a better understanding of the personal, psychological, and economic stressors that accompany litigation. This chapter focuses on the entire process of litigation—from the initial decision to sue to post-settlement or verdict—from the civil plaintiff’s perspective. In doing so, it highlights the factors that shape the plaintiff’s experience, particularly those that influence the stress and trauma of the litigation process. The chapter concludes by offering several suggestions for ways in which the legal system and its actors may minimize stressors and improve the psychological wellbeing of civil plaintiffs.Less

Stress, Trauma, and Wellbeing in the Legal System: Where Do We Go from Here?

Brian H. Bornstein, Gwen Hullman, and Monica K. Miller

in Stress, Trauma, and Wellbeing in the Legal System

This conclusion chapter summarizes, compares, and contrasts the ideas presented across the previous chapters and provides recommendations for areas of future research. The chapter also discusses two ... More

This conclusion chapter summarizes, compares, and contrasts the ideas presented across the previous chapters and provides recommendations for areas of future research. The chapter also discusses two populations that come into contact with the legal system that likely experience stressors as a result of their involvement, but have yet to be studied: Alternative Dispute Resolution professionals and eyewitnesses. These are important populations to study, and some interventions have already been adopted to address the wellbeing of these populations. These interventions are largely untested, and this chapter offers analysis based on theory and related research. Existing approaches to addressing stress and wellbeing can be categorized as either changing the environment or changing the people. Short-term and long-term recommendations for addressing stress in the legal system are offered.Less

Remedial Deliberation in the Legislature

Aruna Sathanapally

in Beyond Disagreement: Open Remedies in Human Rights Adjudication

Chapter 1 identified several rationales for leaving the task of devising human rights remedies to the legislature in the first instance, including the legislature’s superior capacity to make certain ... More

Chapter 1 identified several rationales for leaving the task of devising human rights remedies to the legislature in the first instance, including the legislature’s superior capacity to make certain remedial decisions and the potential to promote cooperation and deliberation across courts and legislatures. Chapter 7 analyses a series of specific case studies of responsive deliberation (including gender recognition and prisoner voting rights), which provide the opportunity to evaluate whether these rationales bear out in practice. It examines one promising example of a DOI being followed by a reflective deliberative process in the legislature. It also considers what disadvantages arise from relying on a legislative remedy to a human rights violation, and from taking an overly permissive approach to legislative deliberation, surfacing two problematic features of the design of DOIs.Less

The View from the Trenches of the Justice-of-the-Peace Courts

Kathryn Hendley

in Everyday Law in Russia

This chapter examines how litigants experience Russia's justice-of-the-peace courts (JP courts). The views of judges are unlikely to mirror those of litigants. For judges, the judicial process ... More

This chapter examines how litigants experience Russia's justice-of-the-peace courts (JP courts). The views of judges are unlikely to mirror those of litigants. For judges, the judicial process represents routine behavior, whereas for most litigants, it opens a Pandora's box of formal rules and informal norms that are unfamiliar and mysterious. This is particularly true for the JP courts, which handle the simplest cases. The chapter first provides an overview of access to justice in Russia before turning to legal literacy, and especially how Russians negotiate the JP courts without a lawyer. It then considers the availability and use of legal expertise by Russians, along with litigants' participation in judicial hearings as performance and their satisfaction with the JP courts. It also describes the image of JP courts and suggests that litigants' willingness to turn to the courts provides a window into the demand for law and, more generally, Russian legal culture.Less

Open Texture in Athenian Law: The Response of the Courts

Edward M. Harris

in The Rule of Law in Action in Democratic Athens

This chapter examines the court's approach to the open texture in Athenian law. It considers six cases for which the court's decision is known or can be inferred. In each case, the court had to ... More

This chapter examines the court's approach to the open texture in Athenian law. It considers six cases for which the court's decision is known or can be inferred. In each case, the court had to choose between a litigant who based his arguments on a more straightforward reading of the law and one who adopted a new or unusual reading of the statute. It shows that when judges were confronted by two different interpretations of the same statute, they tended to accept the traditional interpretation of its wording and to reject new or unusual readings of the law. They were reluctant to follow clever and ingenious interpretations of the law not because they were suspicious of legal expertise, but because they distrusted intellectuals and those trained in rhetoric.Less

Did the Athenian Courts Attempt to Achieve Consistency?: The Use of Precedents in Forensic Oratory

Edward M. Harris

in The Rule of Law in Action in Democratic Athens

This chapter examines how the Athenians attempted to cope with law's “open texture,” that is, the potential ambiguity of statutes. Some scholars have claimed that the Athenian courts were not ... More

This chapter examines how the Athenians attempted to cope with law's “open texture,” that is, the potential ambiguity of statutes. Some scholars have claimed that the Athenian courts were not interested in consistency and tended to judge cases on an ad hoc basis. While it is true that litigants did not often cite previous cases in forensic oratory, this was because most trials concerned questions of fact. When questions concerning the interpretation of statute arose, it was not unusual for litigants to appeal to precedents or to the intent of the lawgiver to support their legal arguments. Litigants used precedents to show that their interpretation of the law was the traditional one, accepted by other citizens.Less

How Strictly Did the Athenian Courts Apply the Law?: The Role of Epieikeia

Edward M. Harris

in The Rule of Law in Action in Democratic Athens

This chapter begins with an analysis of Aristotle's discussion of epieikeia. It shows that epieikeia is not an appeal to a higher standard of justice above the written law but applies only in unusual ... More

This chapter begins with an analysis of Aristotle's discussion of epieikeia. It shows that epieikeia is not an appeal to a higher standard of justice above the written law but applies only in unusual circumstances that could not have been anticipated by the legislator who had to formulate a general rule. When a litigant used an argument based on epieikeia, he was not asking the court to reject the written law but was demonstrating that his case was an exception to the general rule contained in a statute and that in his specific case other legal considerations should take precedence. The second part of the chapter examines several passages in which litigants in Athenian courts use the arguments that Aristotle gives as examples of arguments from epieikeia. Several cases where Athenian judges acquitted defendants for reasons of epieikeia are also considered.Less

Cantonese Courtrooms: Formalism in Flux

in The Common Law in Two Voices: Language, Law, and the Postcolonial Dilemma in Hong Kong

This chapter shows that the interactional order in Cantonese courtrooms is inchoate and flexible. At times, it allows litigants to bring the constitutive dispositions of everyday life into the ... More

This chapter shows that the interactional order in Cantonese courtrooms is inchoate and flexible. At times, it allows litigants to bring the constitutive dispositions of everyday life into the courtroom or to deploy storytelling practices that situate their personal experiences within local contexts. The discussion considers the social demography of the Cantonese courtrooms, bilingualism and the preservation of the common law, Cantonese in the Hong Kong legal system, and cross-examination in the Cantonese courtrooms.Less