The Rule of Law, Freedom, and Prosperity.

After decades of neglect, the rule of law is much on the minds of legal scholars today. In the United States, the Supreme Court's controversial decision in Bush v. Gore has triggered renewed interest in understanding the concept of the rule of law and its value to society. Transition and developing economies have increasingly come to recognize the importance of the rule of law in establishing a framework for economic growth and individual liberty. This essay provides an overview of these debates over the concept and consequences of the rule of law. Although American scholars have criticized the Supreme Court's decision in Bush v. Gore as violative of the rule of law, this criticism rests on an erroneous understanding of the rule of law. The tradition of the rule of law, as expressed by Dicey, Oakeshott, Hayek, and others, is consistent with the Supreme Court's decision in Bush v. Gore. Moreover, this tradition of the rule of law is a cornerstone of a free and prosperous society, in America and abroad.

Decision Support Systems For Strategic Dispute Resolution

Disputes and lawsuits are quite common in business and are often a source of significant liabilities. We conjecture that measurement challenges and lack of adequate analysis tools have greatly inhibited the ability of the General Counsel’s offices in selecting the best mode for the resolution (i.e. litigation vs. out-of-court settlement) of business conflicts and disputes. Easily quantified direct costs (e.g., out-of-pocket expenses related to pursuing and defending against litigation) tend to be considered, whereas the more difficult-to-quantify indirect risks and costs (e.g., damaged relationships with customers and potential alliance partners, including reputational harm) which may be quite significant, tend to be ignored. We also hypothesize that the benefits of Alternative Dispute Resolution (ADR) strategies may have been muted because of the failure to assess the real magnitude of not-easily-quantified indirect risks and costs. We propose two Decision Support Systems (DSSs), one for a macro-level analysis and one for a micro-level (i.e. case by case analysis), to alleviate the measurement and analysis problem. In the proposed DSSs, the underlying decision engine makes use of operations research tools such as decision trees, logic modeling, Monte-Carlo Markov-Chain (MCMC) and fuzzy logic simulations. By providing the means to gather decision-relevant information, especially on difficult-to-measure soft costs, we have attempted to reduce the “decision making risk” for the General Counsel’s offices. In the process, we have also furnished some ways to reach more informed assessments to support litigation risk management strategies and decisions

Turning 18: What a Difference Application of Adult Criminal Law Makes

This paper contributes to the literature on specific deterrence by addressing the issue of selecting adolescents into adult and juvenile law systems. In Germany, different from the U.S. and most other countries, turning a critical cutoff age does not cause a sharp discontinuity from juvenile to adult penal law, but rather implies a shift to a discretionary system of both adult and juvenile law, dependent on the courts' impression of moral and mental personal development of the adolescent at the time of the act. The German legal system draws the line of adulthood at some fuzzy age interval between 18 and 21, which is well above the thresholds prevailing in the U.S. (16 to 18 years, state specific) and other countries such that the German evidence entails some external evidence to the previous literature mostly relying on U.S. data. Based on a unique inmate survey and two-equation models controlling for selectivity problems, results show that application of adult criminal law instead of juvenile penal law decreases expected recidivism of adolescents.survey data, selection, treatment effects, recidivism, crime

Rules, Standards, and Such

This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating and applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. For the law-giver, it would be more useful if it had helped to think about how to pin things down. This better top-level distinction divides binary from scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. First, binary/scalar is a superior distinction for analysis because it is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver’s pinning down the law-applier, and thus enables the tools’ deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another—and so offers a route to retrieving some control in the application of any scalar directive. Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of “irreparable harm,” but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges’ discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test that tries to state alternative combinations of situational facts warranting provisional relief. The best test emerges as a systematized form of scalar directive—a true balancing test—that asks if the expected costs of a potentially wrongful denial exceed the expected costs of a potentially wrongful grant of a preliminary injunction. The inadequacy of the current rule/standard distinction for this analysis reveals itself in the fact that it would probably categorize all the competing preliminary injunction tests as “standards.” In the end, this Article does not propose casting rule/standard aside as a way of evocatively classifying decisional law. Instead, it proposes adopting binary/scalar as the way technically to define rules and standards: a rule appears as a yes/no checklist, and a standard involves a subjective or multidimensional scalar measurement

Rules, Standards, and Such

This Article aims to create a complete typology of the forms of decisional law. Distinguishing rules from standards is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating and applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. For the law-giver, it would be more useful if it had helped to think about how to pin things down. This better top-level distinction divides binary from scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. First, binary/scalar is a superior distinction for analysis because it is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver\u27s pinning down the law-applier, and thus enables the tools\u27 deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another-and so offers a route to retrieving some control in the application of any scalar directive. Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of irreparable harm, but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges\u27 discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test that tries to state alternative combinations of situational facts warranting provisional relief. The best test emerges as a systematized form of scalar directive-a true balancing test-that asks if the expected costs of a potentially wrongful denial exceed the expected costs of a potentially wrongful grant of a preliminary injunction. The inadequacy of the current rule/standard distinction for this analysis reveals itself in the fact that it would probably categorize all the competing preliminary injunction tests as standards. In the end, this Article does not propose casting rule/standard aside as a way of evocatively classifying decisional law. Instead, it proposes adopting binary/scalar as the way technically to define rules and standards: a rule appears as a yes/no checklist, and a standard involves a subjective or multidimensional scalar measurement

Knowledge Discovery for Decision Support in Law

The Split Up project applies knowledge discovery techniques (KDD) to legal domains. Theories of jurisprudence underpin a classification scheme that is used to identify tasks suited to KDD. Theoretical perspectives also guide the selection of cases appropriate for a KDD exercise. Further, jurisprudence underpins strategies for dealing with contradictory data. Argumentation theory is instrumental for representing domain expertise so that the KDD process can be constrained. Specifically, a variant of the argumentation structure proposed by Toulmin is used to decompose tasks into independent sub-tasks in the data transformation phase. This enables a complex KDD exercise to be decomposed into numerous simpler exercises that each require less data and have fewer instances of missing values. The use of the structure also facilitates the development of information systems that integrate multiple reasoning mechanisms such as first order logic, neural networks or fuzzy inferences and provides a convenient structure for the generation of explanations. The viability of this approach was tested with the development of a system that predicts property split outcomes in cases litigated in the Family Court of Australia. The system has been evaluated using a mix of strategies that derive from a framework proposed by Reich

Rules, Standards, and Such

This Article aims to create a complete typology of the forms of decisional law. Distinguishing rules from standards is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating and applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. For the law-giver, it would be more useful if it had helped to think about how to pin things down. This better top-level distinction divides binary from scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. First, binary/scalar is a superior distinction for analysis because it is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver\u27s pinning down the law-applier, and thus enables the tools\u27 deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another-and so offers a route to retrieving some control in the application of any scalar directive. Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of irreparable harm, but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges\u27 discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test that tries to state alternative combinations of situational facts warranting provisional relief. The best test emerges as a systematized form of scalar directive-a true balancing test-that asks if the expected costs of a potentially wrongful denial exceed the expected costs of a potentially wrongful grant of a preliminary injunction. The inadequacy of the current rule/standard distinction for this analysis reveals itself in the fact that it would probably categorize all the competing preliminary injunction tests as standards. In the end, this Article does not propose casting rule/standard aside as a way of evocatively classifying decisional law. Instead, it proposes adopting binary/scalar as the way technically to define rules and standards: a rule appears as a yes/no checklist, and a standard involves a subjective or multidimensional scalar measurement

Conclusions

To design for the purpose of planning was not new when regional design emerged as a distinguished discipline in the 1980s in the Netherlands. On the contrary, to imagine solutions for particular areas and to discuss these for the purpose of planning has been a long-standing tradition that can be traced back to the emergence of urban planning in the early 20th century. However, when spatial planning emerged as a new, more collaborative and anticipatory planning approach in the last decades, expectations concerning performances of design in planning decision-making increased. Design came to be seen as a practice that not only improves the spatial and technical quality of plans, but also enhances planning innovation, clarifies political agendas, forges societal alliances and raises the efficiency of planning through timely consideration of conflicts that planning may cause in societal and political domains. Since the 1990s, regional design underwent a process of institutionalisation in Dutch national planning. The practice became repetitively used and was formally embedded in planning procedures. Despite more varied expectations and institutionalisation, interrelations between regional design and spatial planning are not well understood. As a result, the performances of regional design are difficult to predict and consequently, often disappointing. Therefore, this research has sought to conceptualise interrelations between regional design and spatial planning. It aimed at an enhanced explanation and prediction of performances. The main research question was: how do the interrelations between regional design and spatial planning influence the performances of regional design? Answers to this question were sought through case-study research. During two consecutive rounds of exploration, two perspectives were taken. During a first in-depth case-study, key performances of regional design were analysed. During a second multiple case-studies analysis, the contextual determinants of these performances were investigated. Detailed results of this dissertation are embodied in Chapter 3 to 7 of this publication. Below, these outcomes are summarised in order to form one coherent line of argument. Theoretical notions, which were considered during the research but were not mentioned in earlier publications of the chapters in the form of journal articles and book chapters, are added. The chapter also contains a critical reflection on the research approaches that were used. A dedicated section summarises the implications of findings for future research