Penn State Law Review最新文献

{"title":"Human-Centered Civil Justice Design","authors":"Victor D. Quintanilla","doi":"10.2139/SSRN.2655818","DOIUrl":"https://doi.org/10.2139/SSRN.2655818","url":null,"abstract":"This Article introduces a novel approach for improving and innovating upon the civil justice system, referred to as human-centered civil justice design. The approach synthesizes two interdisciplinary strands: human-centered design thinking and dispute system design. To begin, human-centered civil justice designers empathize with intended beneficiaries and stakeholders, surveying them, observing them, and interviewing them, immersing themselves to uncover their needs and experiences. Civil justice designers embrace and identify the needs of diverse stakeholders and court users (e.g., parties, lawyers, and judges), determining their interests and goals before narrowing the needs to be addressed. These designers ideate and brainstorm a range of human-centered options before winnowing them based upon technological feasibility and financial viability. Throughout this process, prototypes are harnessed to develop insight from stakeholders about the causes, conditions, and nature of problems. These prototypes are empirically tested with pilots and randomized-control trials to explore the many intended and unintended system-wide effects of a proposed intervention. Human-centered civil justice reflects the reality that the civil justice system seeks to reconcile and promote diverse process values, including efficiency and affording members of the public the ability to participate and human dignity.Further, human-centered civil justice draws on psychological and behavioral science on how members of the public experience the civil justice system and encounters with court officials, including psychological science on procedural justice. Decades of research reveal that procedural justice powerfully influences compliance with legal decrees, cooperation with legal authorities, and engagement in other pro-social and democratic participation. In his 2015 year-end report, the Chief Justice called for a legal culture turn toward efficient justice. This is highly consequential for federal judges now serve largely as managerial judges who manage pending cases. There are few explicit norms or standards that dictate how federal judges should manage cases, and despite the power of managerial judges to sculpt the scope of litigation and influence settlement, this discretion is virtually unreviewable. Legal culture shapes how managerial judges think, feel, and behave. Fundamentally, the Chief Justice’s call for legal culture change aims to alter the beliefs, values, and discourses of managerial judges. Troublingly the Chief Justice elaborated a monist theory of value, exalting the value of efficiency — reducing discovery costs and delays in civil justice — while procedural justice and the many process values that the federal civil justice system serves. In marked contrast, human-centered managerial judging would encourage federal judges to infuse their managerial practices beneficially with procedural justice to promote favorable experiences. By promoting these experiences","PeriodicalId":387304,"journal":{"name":"Penn State Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130864544","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":"Does Living by the Sword Mean Dying by the Sword","authors":"C. Jalloh","doi":"10.2139/SSRN.2027121","DOIUrl":"https://doi.org/10.2139/SSRN.2027121","url":null,"abstract":"What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milosevic have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milosevic died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia.This article examines the right to self-representation in international criminal law. Using a comparative law methodology, it demonstrates how the interpretation of that right in international penal courts initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international criminal law, I argue that it is the type of right that is better in theory than in practice. Since no self-representing defendant in international criminal law has ever succeeded in securing an acquittal, by choosing to represent themselves, accused persons who lack the distance, ability and experience raising a reasonable doubt in a complex criminal trial help pave the way to their own convictions.","PeriodicalId":387304,"journal":{"name":"Penn State Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130884145","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":"I Could Have Been a Contender: Summary Jury Trial As a Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution","authors":"Nancy A. Welsh","doi":"10.2139/SSRN.1660637","DOIUrl":"https://doi.org/10.2139/SSRN.1660637","url":null,"abstract":"With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants - and our society - of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life - not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue - i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed.","PeriodicalId":387304,"journal":{"name":"Penn State Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131874105","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":"Analytical Jurisprudence and the Concept of Commercial Law","authors":"J. Linarelli","doi":"10.2139/SSRN.1331928","DOIUrl":"https://doi.org/10.2139/SSRN.1331928","url":null,"abstract":"Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain.","PeriodicalId":387304,"journal":{"name":"Penn State Law Review","volume":"45 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133071698","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}