LSN: Procedure (Public Law - Courts) (Topic)最新文献

{"title":"Distributing Civil Justice","authors":"Matthew A. Shapiro","doi":"10.2139/ssrn.3675848","DOIUrl":"https://doi.org/10.2139/ssrn.3675848","url":null,"abstract":"With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost exclusively on how procedural resources and opportunities should be distributed and, accordingly, who should receive any given share of those resources and opportunities. Much less attention has been paid to what, exactly, is being distributed — which specific goods access to justice actually comprises. Perhaps because of this vagueness, proponents of access to justice have coalesced around a fairly stable set of policy positions on a wide range of procedural issues. \u0000 \u0000This Article shows that apparent consensus to be much less secure than scholars commonly assume. Only by abstracting from the specific goods associated with access to justice can scholars achieve such widespread agreement about which procedural rules and policies accord with distributive justice. In fact, scholars allude to multiple distinct goods when advocating broad access to justice. Though often treated as interchangeable or even synonymous, those goods, once distinguished, turn out to entail potentially conflicting implications for some of the doctrinal and policy issues that currently preoccupy civil procedure scholars, complicating the standard access-to-justice position on each one. Whether a particular policy promotes access to justice and satisfies the demands of distributive justice depends on which specific goods we’re trying to facilitate access to. The unadorned concept of access to justice doesn’t have the fully determinate, unidirectional policy valence that many scholars suppose it to have. \u0000 \u0000The problem, moreover, runs much deeper than just an ambiguity about the aims of civil justice. For the different goods associated with access to justice can be traced to different — and often conflicting — functions of the modern liberal state. Such conflicts are fundamental, going to the core of liberalism, and so are no more likely to be definitively resolved in civil procedure than in any other context. That being the case, we should expose and acknowledge the conflicts between different procedural (and political) goals and restructure procedural rule-making institutions to better negotiate them, rather than imagine that blunt appeals to access to justice alone can determine civil procedure’s proper response to increasing economic inequality. We shouldn’t expect the task of determining the legal implications of economic inequality to be any more straightforward — or any less contentious — in civil procedure than it has been in public law. And public law, for its part, may end up having to make some of the same kinds of difficult trade-offs that civil procedure scholars have be","PeriodicalId":133007,"journal":{"name":"LSN: Procedure (Public Law - Courts) (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129339485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reasonable Doubt Revisited","authors":"E. Tsakas","doi":"10.2139/ssrn.2898069","DOIUrl":"https://doi.org/10.2139/ssrn.2898069","url":null,"abstract":"Choice rules based on probability thresholds are common in several disciplines. The most well-known application of such a threshold rule is the standard of reasonable doubt. Accordingly, a rational juror prefers to convict a defendant if and only if the probability that she attaches to the defendant being guilty is above a given threshold. In this paper we prove that generically such a threshold exists if and only if the juror reasons only about two events, viz., the defendant's guilt and innocence. This result implies that threshold rules are usually inconsistent with individual rationality. Thus, if we insist on using a threshold choice rule, we will have to accept some irrational convictions (false negatives) or some irrational acquittals (false positives) or both. We subsequently characterize each probability threshold in terms of the irrationalities that it induces. Finally, we discuss the empirical implications of our theory.","PeriodicalId":133007,"journal":{"name":"LSN: Procedure (Public Law - Courts) (Topic)","volume":"199 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115685409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reorganizing Organizational Standing","authors":"Ryan Baasch","doi":"10.2139/ssrn.2812340","DOIUrl":"https://doi.org/10.2139/ssrn.2812340","url":null,"abstract":"The Supreme Court has established that organizations cannot get standing on terms unavailable to individuals. For decades the lower courts have nominally paid lip service to this rule while functionally ignoring it. The lower courts almost uniformly confer standing on organizations pursuant to a test that asks some variant of whether the organization (1) identified conduct which conflicts with its mission and (2) then made counter-expenditures. But a plaintiff's \"mission\" -- its passion, so to speak -- is constitutionally irrelevant and volitional expenditures are manipulable, self-inflicted injury. In addition to its constitutional deficiency, no Supreme Court precedent remotely authorizes this doctrine. This Article catalogs the lower courts' miscreation, outlines its illegitimacy, dispels the possibility of Supreme Court authorization and proposes a constitutionally grounded alternative for assessing organizational standing going forward.","PeriodicalId":133007,"journal":{"name":"LSN: Procedure (Public Law - Courts) (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124345512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}