Lit. Theory Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce judicial decisions. He argues that both American and French judicial decisions construct and use the dichotomy in order to make similar ontological claims about the nature of adjudication—namely, that adjudication is both inherently stable and socially responsive

The European Pasteurization of French Law

In a series of stunning decisions handed down in the last few years, the European Court of Human Rights (ECHR) has condemned the decisionmaking procedures traditionally used by the French Supreme Courts (i.e., the Cour de cassation and the Conseil d\u27Etat). This Article traces and critiques this developing “fair trial” jurisprudence, which has also resulted in the condemnation of the supreme courts of Belgium, Portugal, and the Netherlands, whose decisionmaking procedures were all patterned on the French civil law model. Finally, the Article examines the dramatic and schismatic French responses that have ensued. This Article offers a case study at the intersection of European law, comparative law and judicial theory. It begins by describing—and distinguishing between—the interpretive practices and judicial theories that characterize the legal systems of France, the United States, and the European Union. It then analyzes the complex, multifaceted, and ongoing negotiation between these systems\u27 divergent understandings of proper judicial practice. Professor Lasser concludes that the largely misguided interchange between the French supreme courts and the ECHR may well have resulted in pasteurizing the French civil law procedural model into bland nonexistence. The traditionally republican and institutional modes of French judicial decisionmaking have been forced to take on some of the more democratic and argumentative features that characterize ECHR and, especially, American judicial decisionmaking. Unfortunately, these reforms may grant a new argumentative prominence—and thus normative dominance—to the French judiciary (precisely what the traditional French system was designed to avoid), without, however, counterbalancing this new judicial power with sufficiently effective individual, public, and argumentative judicial accountability. Whether these reforms mark the beginning of the end or the beginning of a creative new beginning of the French civil law model of judicial decisionmaking remains to be determined

Unstable Identities: The European Court of Human Rights and the Margin of Appreciation

All legal systems work under a master narrative – the self-conception of most actors of the system itself. A master narrative is a short and simple story and it is the underlying premise upon which any legal system is based. It is a simple story because it paints the system in quick broad brushstrokes and at (most) times is oblivious to the paradoxes within it. Furthermore, a master narrative is important for legitimization purposes because the actors’ legitimacy will depend on their (perceived) conformity with the system’s master narrative. Therefore, legitimacy is self-referential; the yardsticks for a legitimate action are contained within the system’s master narrative, not outside of it. When talking about different international courts it is important to remember that they are embedded within a master narrative that is contextual and contingent and, at different points, more or less contested. This paper explores the question of what happens when the master-narrative is in a period of transition (from a state cantered to a post-national world order) and when the actors’ legitimacy, their interpretative endeavours the very fundamentals are in a state of flux. I use the margin of appreciation discussion as a focal point of describing the conflicting narratives under which the European Court of Human Rights works, narratives in which the different actors (judges, attorneys, NGO activists, government agents) and their consequences in terms of the interpretation of the European Convention on Human Rights

Judicial (Self-)Portraits: Judicial Discourse in the French Legal System

The French legal system, according to its official pronouncements, functions on a rigid conception of the interpretive and creative role of the civil, private law judge. This conception may be thought of as an official portrait : It is an image or representation of the judge and of the nature of the judicial role. The official portrait, which represents an interpretive ideology that posits a perfectly grammatical mode of reading the legal code, has been the source of much confusion, especially to common lawyers. This portrait\u27s predominance in the French legal system, and its effect on French judicial practice, has never been properly understood, even by the finest American analysis of the French legal system: John Dawson\u27s The Oracles of the Law. By demonstrating that the official portrait is but the most visible of several conceptions of the judicial role currently operating in the French legal system, this Article seeks to correct the skewed common law accounts of how the French judicial system actually functions. In the process, this Article exposes an entire sphere of French judicial discourse that is kept largely hidden from the general public, and whose very existence requires novel analysis. This Article constructs an unofficial portrait of the French civil judge, based on the conceptions of the judicial role prevailing in this hidden discursive sphere. Finally, it examines the effects that the coexistence of the official and unofficial portraits produce on French judicial interpretation, discourse, and rhetoric

Quantifying eloquent locations for glioblastoma surgery using resection probability maps

OBJECTIVE Decisions in glioblastoma surgery are often guided by presumed eloquence of the tumor location. The authors introduce the "expected residual tumor volume" (eRV) and the "expected resectability index" (eRI) based on previous decisions aggregated in resection probability maps. The diagnostic accuracy of eRV and eRI to predict biopsy decisions, resectability, functional outcome, and survival was determined. METHODS Consecutive patients with first-time glioblastoma surgery in 2012-2013 were included from 12 hospitals. The eRV was calculated from the preoperative MR images of each patient using a resection probability map, and the eRI was derived from the tumor volume. As reference, Sawaya's tumor location eloquence grades (EGs) were classified. Resectability was measured as observed extent of resection (EOR) and residual volume, and functional outcome as change in Karnofsky Performance Scale score. Receiver operating characteristic curves and multivariable logistic regression were applied. RESULTS Of 915 patients, 674 (74%) underwent a resection with a median EOR of 97%, functional improvement in 71 (8%), functional decline in 78 (9%), and median survival of 12.8 months. The eRI and eRV identified biopsies and EORs of at least 80%, 90%, or 98% better than EG. The eRV and eRI predicted observed residual volumes under 10, 5, and 1 ml better than EG. The eRV, eRI, and EG had low diagnostic accuracy for functional outcome changes. Higher eRV and lower eRI were strongly associated with shorter survival, independent of known prognostic factors. CONCLUSIONS The eRV and eRI predict biopsy decisions, resectability, and survival better than eloquence grading and may be useful preoperative indices to support surgical decisions

On the cutting edge of glioblastoma surgery:where neurosurgeons agree and disagree on surgical decisions

OBJECTIVE: The aim of glioblastoma surgery is to maximize the extent of resection while preserving functional integrity. Standards are lacking for surgical decision-making, and previous studies indicate treatment variations. These shortcomings reflect the need to evaluate larger populations from different care teams. In this study, the authors used probability maps to quantify and compare surgical decision-making throughout the brain by 12 neurosurgical teams for patients with glioblastoma. METHODS: The study included all adult patients who underwent first-time glioblastoma surgery in 2012-2013 and were treated by 1 of the 12 participating neurosurgical teams. Voxel-wise probability maps of tumor location, biopsy, and resection were constructed for each team to identify and compare patient treatment variations. Brain regions with different biopsy and resection results between teams were identified and analyzed for patient functional outcome and survival. RESULTS: The study cohort consisted of 1087 patients, of whom 363 underwent a biopsy and 724 a resection. Biopsy and resection decisions were generally comparable between teams, providing benchmarks for probability maps of resections and biopsies for glioblastoma. Differences in biopsy rates were identified for the right superior frontal gyrus and indicated variation in biopsy decisions. Differences in resection rates were identified for the left superior parietal lobule, indicating variations in resection decisions. CONCLUSIONS: Probability maps of glioblastoma surgery enabled capture of clinical practice decisions and indicated that teams generally agreed on which region to biopsy or to resect. However, treatment variations reflecting clinical dilemmas were observed and pinpointed by using the probability maps, which could therefore be useful for quality-of-care discussions between surgical teams for patients with glioblastoma