“The One-Eyed Are Kings”: Improving Congress’s Ability to Regulate the Use of Judicial Resources

Improving the ability of Congress to regulate the use of judicial resources is discussed. Reducing caseload growth in the federal courts, assuring that judicial resources are utilized effectively and a proposed agency that would structure jurisdiction under particular legislation are discussed

Online Dispute Resolution Through the Lens of Bargaining and Negotiation Theory: Toward an Integrated Model

[Excerpt] In this article we apply negotiation and bargaining theory to the analysis of online dispute resolution. Our principal objective is to develop testable hypotheses based on negotiation theory that can be used in ODR research. We have not conducted the research necessary to test the hypotheses we develop; however, in a later section of the article we suggest a possible methodology for doing so. There is a vast literature on negotiation and bargaining theory. For the purposes of this article, we realized at the outset that we could only use a small part of that literature in developing a model that might be suitable for empirical testing. We decided to use the behavioral theory of negotiation developed by Richard Walton and Robert McKersie, which was initially formulated in the 1960s. This theory has stood the test of time. Initially developed to explain union-management negotiations, it has proven useful in analyzing a wide variety of disputes and conflict situations. In constructing their theory, Walton and McKersie built on the contributions and work of many previous bargaining theorists including economists, sociologists, game theorists, and industrial relations scholars. In this article, we have incorporated a consideration of the foundations on which their theory was based. In the concluding section of the article we discuss briefly how other negotiation and bargaining theories might be applied to the analysis of ODR

Judging Risk

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such quantitative information

Dilemmas of Cultural Legality: A Comment on Roger Cotterrell\u27s \u27The Struggle for Law\u27 and a Criticism of the House of Lords\u27 Opinions in Begum

In “The Struggle for Law: Some Dilemmas of Cultural Legality,” Professor Roger Cotterrell argues that the law’s most distinctive aspiration is to promote a respectful exchange of ideas among different parts of a multicultural society. He illustrates his thesis with the House of Lords’ decision in Begum, describing it as “a relatively successful contribution to the process by which battlefields of rights are turned into areas of routine structuring” and finding much to admire in the messages communicated by the Lords in this case. I am more troubled by the Lords’ opinions in Begum and less convinced than Cotterrell seems to be that the court used it as an opportunity to promote successful cross-cultural dialogue. On close examination, the message it communicates to Muslims in Great Britain and elsewhere appears to be less that of mutual respect or “trans-cultural reasonableness” than of evasion and double standards. This conclusion rests on four main observations. First, although Article 9 of the European Convention on Human Rights requires courts to engage in a two-part analysis by first asking whether an individual’s religious freedom has been limited and then determining whether any such limitation can be justified, the Lords simply elide both the crucial distinction between purpose and incidental effects and the careful scrutiny of necessary means that are required for a proper legal analysis in this context. The school dress code policy in Begum appears to have targeted a certain type of religious clothing because of its character as religious clothing and the particular belief system it represents. Yet three of the judges held that the policy did not even limit religious freedom, and none of them made a serious attempt to show that this limitation was “necessary in a democratic society” as required by the ECHR. Second, a familiar lesson of both feminism and critical race theory is that rights discourse can often be uplifting for disadvantaged or marginalized populations, and that denying these individuals the chance to participate in that discourse, and to assert their rights, can be alienating or disempowering for them, serving mainly to reinforce their subordinate status. In this light, one of the most conspicuous features of Begum is the manner in which Shabina Begum and her family are chastised, scolded even, for approaching their dispute with school officials from a legal perspective and vigorously asserting her legal rights. Several of the Lords accept without comment the school’s portrayal of this behavior as “threatening” and add some unflattering characterizations of their own. Third, as Cotterrell perceptively observes, the House of Lords effectively “dilutes Shabina Begum’s individual claim by implicitly portraying it as something else: perhaps a politically motivated group claim” or “an insincere claim abstracted from her personal circumstances.” For example, the Lords emphasize that Begum elected to comply with the school’s dress code for two years before subsequently refusing to do so. Oddly, several of the judges imply that the school thereby obtained some kind of reliance interest in this behavior, as if an individual were not entitled to change her mind about what clothes to wear and thereafter modify her conduct accordingly. At the same time, the Lords pass right over the rather obvious differences between the ages of twelve and fourteen in the typical course of female adolescent development. Apart from a brief mention by Baroness Hale, one searches in vain for any serious analysis or recognition in these opinions of the fact that, over the course of these two years, Begum presumably had undergone puberty, crossing the threshold from girl to young woman, at least in her own eyes, and developing breasts, hips, and other adult characteristics, which she then wished to conceal, as a matter of sincere religious belief or otherwise. A more sympathetic decision might have considered these facts and Begum’s physical, cognitive, and emotional development generally from the perspective of familiar rites of passage like the Christian confirmation or Jewish bat mitzvah. Instead, the Lords often fall into the dismal pattern of exoticizing Begum and of viewing her largely unremarkable manifestation of adolescent independence through the prism of their own apparent multicultural anxieties. Finally, another indication that the Lords missed a valuable opportunity to promote successful cross-cultural dialogue in Begum is, paradoxically, the deference it displays to Islamic religious authorities. The court repeatedly relies on the approval of Muslim religious leaders to uphold the school’s dress code policy. To grasp the irony of appeals to religious authority in this context, one need only recall the central drama of the Reformation, which eventually paved the way for secular developments such as the Scientific Revolution and the Enlightenment, but which was above all else a revival of religion, as historian Roland Bainton observes. Luther’s famous, if perhaps apocryphal, declaration of autonomy has long been held to mean that no one should be compelled to accept the authority of intermediaries in matters of individual conscience. The Lords neglect to explain why this celebrated principle does not apply to Muslims like Shabina Begum. Isn’t she entitled to decide for herself which, if any, religious authorities to accept, without being forced to comply with the edicts of local Imams or “mainstream” Muslim opinion

Structuring the European Administrative Space - Channels of EU Penetration and Mechanisms ofNational Change

The author provides an analytical model to capture mechanisms of supranational impact on national public administrations. The aim is to understand how we can perceive a European administrative space given the persistent diversity between member states. In face of the overly complex subject matter, it is argued that a typology that presents ideal types of interaction modes between supranational and national levels of administration provides in fact a suitable pragmatic approach to understand the potential impact of European integration on national civil services. Scrutinizing which mechanisms of possible influence-taking the European Union (EU) invokes shows that administrative integration does actually not suggest overall convergence. Instead the shared administrative space works precisely because it preserves state-sensitive diversity. Only in the context of enlargement did the EU need to present a single model to the candidate states and thus the notion of an ever more converging single administrative space was invented. Despite the external promotion of a single model, the driving dynamic of the emerging European administrative space remains increased cooperation and common administration that respects and sustains differences between independent national public administrations. The theoretical framework and empirical application therefore provide a first step for further research to tackle how supranational integration changes national public administration.public administration; identity; ideas; integration theory; public administration; closer cooperation; Europeanization; Europeanization

The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance

Ignorantia legis non excusat-ignorance of the law does not excuse-is a centuries-old criminal law maxim familiar to lawyer and layperson alike. Under the doctrine, an accused finds little protection in the claim But, I did not know the law, for all are presumed either to be familiar with the law\u27s commands or to proceed in ignorance at their own peril. The ignorant must be punished along with the knowing, the maxim teaches, to achieve a better educated and more law-abiding populace and to avoid the easy-to-assert and difficult-to-dispute claim of ignorance that would otherwise flow from the lips of any person facing criminal punishment. Despite this country\u27s long-standing allegiance to the hoary maxim, over the last century, and in particular over the last decade, the courts have seriously eroded the ignorantia legis principle by frequently construing the mens rea term willfully to require proof of an accused\u27s knowledge of the law. The erosive effect that these constructions have had on the ignorantia legis maxim is referred to in this Article as the jurisprudence of willfulness. Professor Davies demonstrates that, contrary to the maxim, the number of federal criminal statutes that have been construed to impose such a heightened mens rea requirement is already quite large. The Article reveals that, if the courts continue to employ their current interpretive approach to the term willfully, at least 160 additional federal statutes containing the term are at risk of similar treatment. The author argues that contemporary constructions of the troublesome scienter term to impose a knowledge of the law element have been grounded on doubtful, unchallenged logic and have bequeathed a legacy of grave interpretive confusion. Professor Davies maintains that much of the jurisprudence of willfulness is inimical to congressional judgments and, therefore, violative of rule of law and separation of powers principles. The Article urges a return to the ignorantia legis principle in all cases in which a clear legislative intent to abandon the maxim when employing the term willfully is missing

Effective Strategies to Support Advocacy Campaigns: Considerations for Funders and Advocates

This report shares collected insights from funders and advocates across the country, in the hope that their observations will helpfully contribute to other funding and campaign efforts. The respondents noted that while considerable attention has been paid to factors informing the development of sound campaign strategy, comparatively less attention has been paid to the structural and operational issues that undergird successful campaign efforts. Our research accordingly focuses on these matters