Suchergebnisse

Under what conditions can courts produce political and social change? My claim is that courts can be most consequential when they act in concert with other actors to create political spaces for ongoing discussion and engagement with regard to rights. In explaining judicial impact, I focus on the novel and understudied oversight mechanisms-like follow-up committees and public hearings-That some assertive high courts deploy to monitor adherence to some of their rulings. The analysis is based on comparative case studies of two landmark socioeconomic rights cases handed down by the Argentine Supreme Court. I show that the deployment of oversight mechanisms can create institutional spaces where the court, elected leaders, and private and civil society actors converge to generate change, resulting in greater impact. © 2018 City University of New York. All rights reserved.

Over the years, many decisions concerning the rights to water resources have been addressed in state legislatures and federal courts; however, the majority of decisions concerning the conflicting demands over water have been addressed in state courts. This study examines the body of water rights cases heard in state supreme courts of the eleven Western states and focus on litigant participation and success. The data set includes all the water rights cases decided between 1972 and 2008 in the eleven western state high courts (Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming). The study explores the propensity of different types of litigants to initiate water rights cases at the state supreme court level, and also examines litigation patterns to determine which litigants are the targets of these appeals. Galanter's (1974) party capability theory is used to help explain patterns of litigant success.

En la investigación Percepción de la Política Criminal del Estado sobre la Cadena Perpetua en los litigantes, tuvo como objetivo explicar teóricamente que las Políticas Criminales que viene estableciendo el Estado, con respecto a la utilización de nuestro ordenamiento penal a razón de la elevación de las sanciones con respecto a las conductas criminales, no vienen siendo efectiva en función de la rehabilitación del penado en nuestra sociedad por el contrario se crea una paradoja con respecto a la finalidad de la pena. El correspondiente trabajo se ha desarrollado bajo el paradigma interpretativo, le corresponde tener razón en los fundamentos del enfoque cualitativo. Los métodos empleados fueron el inductivo hermenéutico, dentro de un diseño de investigación de estudios de casos que justifique una propuesta legislativa. Asimismo, las unidades de análisis son los profesionales especializados en el tema de la política criminal, así como también los jueces y fiscales. Para recoger la información de los magistrados, juristas y otros entendidos se emplearon la técnica de la entrevista no estructurada respectivamente. En todo caso el presente trabajo establece resultados tanto generales como principales en este sentido tenemos respectivamente la aplicación de una adecuada política criminal, y por otro lado el retiro de la cadena perpetua establecida en la ley 30077; con la cual se busca obtener una reducción de la criminalidad en nuestra sociedad.

This article presents a brief biography of Manuel Aguilar Chacón, the first Costa Rican Law graduate, who acted as litigant in Costa Rican courts. He was also an important politician, who served as Head of State from 1837 to 1838. ; Este texto contiene una breve biografía del Manuel Aguilar Chacón, primer costarricense graduado en Derecho que actuó como litigante en los tribunales costarricenses. Fue también un importante político y Jefe de Estado de 1837 a 1838.

This research investigates unrepresented litigants' (lay people who represent themselves in litigations) access to justice in the common law in Hong Kong. In particular, it examines the potential sources of miscommunication in their contact with the law and legal professionals. Hong Kong is the only common law jurisdiction that operates in both Chinese and English with equal status. During most of the British colonial days, English was used as the only legal language in the common law. It was not until 1987 when Chinese was made co-official and all legislation was subsequently translated into Chinese just before the handover to China in 1997. The bilingual policy in law potentially extends access to the legal system for the majority of the population whose first language is Chinese. One less obvious impact of legal bilingualism is the growing trend of unrepresented litigants (lay people who represent themselves in litigations) in court. The judiciary in Hong Kong has noted a considerable increase in unrepresented litigants in civil proceedings in recent years (Judiciary Administration, 2003). Since unrepresented litigants are usually unfamiliar with law and legal procedures, they demand a significant amount of judicial time and resources, posing challenges to the courts (Judiciary Administration, 2003). Existing literature suggests that legal professionals generally regard these lay people as the root of communication problems in trials (Kelly and Cameron 2002; 2003). Yet this view has failed to address the end-users' perspective on the issue. Thus, this research takes a bottom-up approach to give voice to unrepresented litigants in response to questions that arise from the context: (1) to what extent is the Chinese legal language accessible to lay people, and (2) what are the communication problems lay people face in their litigations? By employing mixed methods, this research demonstrates that miscommunication may tie to unrepresented litigants' understanding of legal language, legal procedure and ideology of law. A linguistic and empirical study on official legal materials shows how some features of the Chinese legal language may be difficult for lay people to understand, such as the use of odd collocation, unusual words, and confusing parts of speech. Plain language with language-specific strategies may help improve the comprehensibility of the materials. Courtroom observations suggest that lay people may approach law differently from their legal counterparts. Indeed, an ethnographic study with an informant reveals how the lay strategies (i.e. lexical inferencing, literal interpretation and selective reading of texts) of decoding legal language may be misleading, and that lay people may have difficulties constructing their personal stories as legal problems. The ethnography supplemented by a survey with unrepresented litigants further highlights how legal professionals' use of language (e.g. jargon and complicated sentence structure) may limit lay people's understanding of legal discourse. Language accommodation by lawyers and judges may be useful for aiding communication. Based on the findings, this research presents implications for (1) communication by showing how legal-lay communication may be improved, and (2) law by outlining the reality of legal bilingualism in common law jurisdictions. ; published_or_final_version ; English ; Doctoral ; Doctor of Philosophy

From the introduction: The framing title of this Symposium—Noncitizen Participation in the American Polity—seems to present an obvious contradiction: How can noncitizens, who are by legal definition "aliens" and often seen as "outsiders;" who are frequently described as lacking full "membership" in society; and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented—who by definition have violated U.S. law, who face the existential epithet of being "illegal aliens," and who have been well-described as living under "a regime of enforced invisibility"—possibly do so? Are they even part of the polity? And if they do somehow manage to participate, how should we assess such actions? The apparent contradiction is largely illusory. Noncitizen participation in the American polity (including the participation of undocumented noncitizens), though mostly undertaken by means other than voting, has long been a reality in the United States. This historical fact remains true notwithstanding such current initiatives as Arizona's cynical policy of "attrition through enforcement." This Article examines such participation and considers a provocative normative claim: noncitizen polity-participation is a crucial, positive engine of constitutional evolution and, as such, an essential component of politico-legal legitimacy. Justice Kennedy's opinion was clearly right, in Arizona v. United States, to affirm that "[i]mmigration policy shapes the destiny of the Nation." This is equally true of noncitizen polity-participation in its various forms. Litigation by noncitizens is a surprisingly large—and surprisingly under-appreciated—aspect of the deep truth also noted by Justice Kennedy, that "[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here."

Forensic science is used as evidence in criminal cases regularly. Recently, however, scientists have criticized several commonly used forensic methods that are unreliable, scientifically invalid, and have contributed to wrongful convictions. In contrast, DNA testing, which is reliable and valid, is a powerful resource for exonerating wrongfully convicted individuals. Congress and all fifty states have enacted statutes providing access to post-conviction DNA testing. Only nine states, however, have enacted statutes granting post-conviction litigants access to another important resource—law enforcement DNA database searches. Even though Congress amended the federal post-conviction DNA testing statute to provide access to DNA database searches in 2016, only applicants incarcerated for federal offenses are eligible for relief under this statute. This Note argues that, to remedy wrongful convictions, all state legislatures should amend post-conviction DNA testing statutes to provide access to DNA database searches. Alternatively, Congress should amend the federal post-conviction DNA testing statute to provide post-conviction litigants wrongly convicted of state offenses with access to DNA database searches.

Data breaches are not going away. Yet victims still face uncertainty when deciding whether and where to file cases against companies or other institutions that may have mishandled their information. This is especially true if the victims have not yet experienced a financial harm, like identity theft, as a result of a data breach. Much of the uncertainty revolves around the standing doctrine and the Supreme Court's guidance (or lack thereof) on what constitutes a substantial risk of harm sufficient to establish an injury in fact. Federal circuit courts have come to divergent results in data breach cases based on the Supreme Court's guidance. This Note analyzes these divergent results and shows that the circuits are not as far apart as some commentators have suggested. This Note then proposes two possible clarifying measures—one judicial and one legislative. The judicial solution is a test the Supreme Court should adopt for evaluating standing in data breach litigation. The test would have courts assess three factors and would allow plaintiffs who have not yet had their data misused to establish standing. Under the test, courts would examine (1) whether the breach was targeted; (2) whether the thief attained information that could lead to financial harm; and (3) whether any portion of the compromised data has been misused. For the legislative solution, this Note proposes language for a private right of action that could be inserted into federal legislation, either as part of comprehensive privacy legislation or in sector-specific privacy legislation.

Normative decision theory describes the judgment and decision-making process as a cost/benefit analysis based upon maximum utility. One assumption of the theory is full rationality for choices made throughout the process. Due to bounded rationality, however, mental shortcuts become necessary. Use of these shortcuts does not necessarily diminish the quality of the decision. However, a suboptimal use of a heuristic results in a biased decision. Kahneman and Tversky (1979) identify three basic heuristics: availability, representativeness, and anchoring and adjusting. One suboptimal use of the anchoring and adjusting heuristic, confirmation bias, is the unconscious search for and evaluation of information that confirms one's desired decision outcome while ignoring disconfirming information. In an adversarial legal contest, relying on biased research diminishes the probability of prevailing (Johnson 1993). The intent of this research inquiry is to use archival data to test for the presence of confirmation bias in the defenses presented by the litigants in Tax Court Memorandum Opinions. The data sample consists of the briefs presented to the Court by both litigants, taxpayer and Internal Revenue Service, in 106 of the 288 rendered Memorandum Decisions in 2004. Summary statistics from the data show that 51.85% of taxpayers represent themselves (i.e., pro se) in the contentious proceedings. The remaining taxpayers employ tax professionals to provide the defense. The IRS has a contingent of legal counsel to present their position. Non-parametric statistical testing provides evidence that defenses presented by pro se taxpayers show more bias than defenses provided by tax professionals. In turn, taxpayers' professional representatives present more biased defenses than do the IRS professional representatives. This research inquiry adds external validity to the extant literature on biased research recommendations resulting from the tax research task. That is, numerous identified incentives promote susceptibility to the use of confirmatory decision-making strategies. As shown in this study, incentives impact practitioners differently than government employees. Remedial measures, including education, task-specific experience, and accountability can reduce this proclivity. Pro se taxpayers, with no legal education, experience, or accountability, show a greater degree of bias in their defenses than do tax professionals.

Legislators in jurisdictions with even modest minority populations will find adopting a challenge-resistant redistricting plan to be more difficult than ever before. The problem is how much consideration to give to race. Too little consideration may produce a plan subject to challenge under the Voting Rights Act (the "Act"). Too much consideration may produce a plan subject to challenge on constitutional grounds.

This article explores the origin of private property in the Colombian legal system. The authors use Supreme Court case law from the twentieth century to analyze in-depth how wastelands (baldíos) come to be owned. Supreme Court decisions are organized and examined with respect to issues pertaining to appropriate modes of acquisition of wastelands, either occupation and labor or state grant, and the rules of evidence to prove whether the owner of a specific plot is the state, the titleholder or the settler (colono). This article demonstrates the difficult task of establishing simple clear rules to determine the ownership over tracts of land categorized as wastelands through the examination of the ambiguities of legislation and of the contradictory Supreme Court's rule of law. It also identifies the areas of contention, contestation and contradiction in the regulation of this matter and highlights how litigants, settlers, titleholders and Supreme Court Justices are part of a constant struggle to define the particular meaning of ownership over wastelands. © 2015 by De Gruyter.

Arbitration and confidentiality clauses have become popular contract provisions for preclusion and obstruction of potential lawsuits. While such contract provisions are legitimate mechanisms under our freedom to contract, their enforcement may simultaneously run afoul of New Mexico's strong public policy interests in consumer protection under the Unfair Practices Act. In State ex rel. Balderas v. ITT Educational Services, Inc., the New Mexico Court of Appeals heard interlocutory appeal from the defendant seeking to use a confidentiality agreement within an arbitration provision to block discovery by the plaintiff Attorney General. The court held that enforcing the arbitration provision would be contrary to public policy considering the statutory power of the AG and the policy interests of the UPA. The court raised but did not reach the question of whether a private UPA litigant would similarly be able to void enforcement of a contract clause used to shield a defendant. This Case Comment argues that, given the legislative intent, public policy, and broad jurisprudence of the UPA, a private litigant may prevail in such a case. Such a plaintiff must navigate many considerations, but the UPA presents a positive mechanism of consumer protection to potentially void a contract provision that is contrary to public policy.

Includes abstract. ; Includes bibliographical references. ; European and North American jurisprudence imbued the concepts of fair trial and access to justice in Western culture. The United Nations later proclaimed these foreign principles 'universal human rights', seemingly oblivious of the marginal role played by African states during conceptualisation. African governments, mindful of their minimal contribution to the content of individual rights, however, introduced communal rights and duties in the African Charter on Human and Peoples' Rights. This was the situation internationally, and in the region of Africa. On the domestic scene, South Africa ratified both international and African human rights conventions; hence, its Constitution incorporated the rights of access to justice, fair trial, equality and culture. These rights, however, create conflict during dispute resolution. This is evident with the country's multiple legal systems, allowing urban and rural litigants to engage in forum shopping, by approaching formal courts or traditional tribunals in civil and criminal contexts. In the formal courts, rural litigants (especially women, as lower income earners) encounter exorbitantly high costs of litigation, long travel distances to court, alien laws and procedures and, all too often, a foreign language in court, making these forums inaccessible. Conversely, traditional trubunals guarantee easier access to justice because they provide affordable and comprehensible procedures, and are usually located in close proximity to parties. African tribunals, however, hinder equal standards between men and women during conflict resolution, by violating the right to gender equality — a right implicit in fair trial. Usually, traditional judicial officers accept women as complainants, witnesses or accused persons, but rarely encourage or recognise the female demographic as participants in a judicial capacity (in some cases they do not even permit them to attend judicial proceedings). In spite of these shortcomings, traditional methods advance flexible, communal and harmonious procedures, in accordance with the African culture. While these characteristics of traditional tribunals gurantee the protection of cultural equality, human rights activists are fixated with the argument that these African structures discriminate against women, and often ignore their benefits. More importantly, the proponents of human rights fail to investigate the inequalities that plague the formal justice system. Well aware of the limited research in both regards, this thesis conducts a broad critique of the South African justice system, comparing the formal with the traditional. Based on its findings, the study argues in favour of traditional tribunals, which guarantee cultural rights as well as access to justice for poorer litigants.

Bill introduced by the Texas Senate relating to the protection of defendants against vexatious litigants.

this study presents the methods of individual and collective identification before the Civil and Criminal Justice Courts of the Niedermal District Court in Homs, through the records of hearings covering the years 1886 to 1919. Administrators and administrators, court staff, witnesses, informants and many others must be identified or identify themselves. On the eve of the civil status organised by the Law of 14 October 1890, reporting to the court appears to be a well-defined task; however, some variations or differences in the form and choice of the elements of identification make it possible to question the local application of Ottoman legislation. ; International audience Personal identification at the dawn of the Ottoman Registry (nufûs): litigants before the civil court of Homs (central Syria) in late nineteenth century. This article is based on the records of hearings between 1886 and 1919 before the civil court and the criminal justice court of first intance (niẓâmî) of Homs. It presents the different modes of identification for individuals and groups. Administrators, subjects, court personnel, witnesses, informants and others must identify themselves or be identified. After the creation of the Registry Office (Law of October 14, 1890), introducing oneself before the court became a set of well-defined procedures. However, some differences in form and choice of personal identification components allow us to consider how Ottoman legal system was locally applied. ; this study presents the methods of individual and collective identification before the Civil and Criminal Justice Courts of the Niedermal District Court in Homs, through the records of hearings covering the years 1886 to 1919. Administrators and administrators, court staff, witnesses, informants and many others must be identified or identify themselves. On the eve of the civil status organised by the Law of 14 October 1890, reporting to the court appears to be a well-defined task; however, some variations or differences in the form and choice of ...