Predicting Outcomes in Investment Treaty Arbitration

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived from 272 publicly available ITA awards, this Article examines outcomes of ITA cases to explore those concerns. Key descriptive findings demonstrate that states reliably won a greater proportion of cases than investors; and for the subset of cases investors won, the mean award was US$45.6 million with mean investor success rate of 35%. State success rates were roughly similar to respondent-favorable or state-favorable results in whistleblowing, qui tam, and medical-malpractice litigation in U.S. courts. The Article then explores whether ITA outcomes varied depending upon investor identity, state identity, the presence of repeat-player counsel, arbitrator-related, or venue variables. Models using case-based variables always predicted outcomes whereas arbitrator-venue models did not. The results provide initial evidence that the most critical variables for predicting outcomes involved some form of investor identity and the experience of parties’ lawyers. For investor identity, the most robust predictor was whether investors were human beings, with cases brought by people exhibiting greater success than corporations; and when at least one named investor or corporate parent was ranked in the Financial Times 500, investors sometimes secured more favorable outcomes. Following Marc Galanter’s scholarship demonstrating that repeat-player lawyers are critical to litigation outcomes, attorney experience also affected ITA outcomes. Investors with experienced counsel were more likely to obtain a damage award against a state, whereas states retaining experienced counsel were only reliably associated with decreased levels of relative investor success. Although there was variation in outcomes, ultimately, the data did not support a conclusion that ITA was completely unpredictable; rather, the results called into question some critiques of ITA and did not prove that ITA is a wholly unacceptable form of dispute settlement. Instead, the results suggest the vital debate about ITA’s future would be well served by focusing on evidence-based insights and reliance on data rather than nonreplicable intuition

Assuming Elder Care Responsibility: Am I a Caregiver?

Caregivers of the elderly face conflicting legal demands; they must make certain the elder’s needs are being met while not forcing undesired care on an adult capable of informed decisions. This dichotomy may be a reason a large volume of reported elder abuse derives from unintentional neglect on behalf of informal familial caregivers. The current research examines this possibility with exploratory interviews and an experiment. The interviews between elders and their family (30 dyads) revealed that many did not intend for the living arrangements to become permanent, and the nonelders were largely unprepared for the magnitude of changes and responsibilities that would result. The elders often expressed a sense of loss for their former life and feeling supernumerary in the family. In the experiment, we examined whether a person recognizes when a caregiving relationship exists and the factors that contribute to notions of being a caregiver. Results suggest that potential caregivers (124 community members) focus on the relationship with the elder more than the elder’s physical and financial needs, and generally have stronger feelings of moral responsibility rather than legal responsibility to provide care

Variations in Victim Presence in Restorative Youth Conferencing Programs: The Use of Surrogate Victims Increases Reparation Completion

Victim-offender conferencing programs have expanded the type of victims involved in restorative rituals. However, little research has examined how variations in victim presence might impact these interventions. The aim of this study was to examine whether conferences involving actual victims resulted in higher reparation completion and how surrogate characteristics might impact reparation outcomes. Using regression modeling, we estimated how the variables of interest predicted reparation completion. Conferences with surrogates had a higher probability of completion than those with actual victims. Using surrogates may be a promising strategy to expand restorative justice practices when actual victim participation is not possible

Four Decades of the Journal \u3ci\u3eLaw and Human Behavior\u3c/i\u3e: A Content Analysis

Although still relatively young, the journal Law and Human Behavior (LHB) has amassed a publication history of more than 1300 full-length articles over four decades. Yet, no systematic analysis of the journal has been done until now. The current research coded all full-length articles to examine trends over time, predictors of the number of Google Scholar citations, and predictors of whether an article was cited by a court case. The predictors of interest included article organization, research topics, areas of law, areas of psychology, first-author gender, first-author country of institutional affiliation, and samples employed. Results revealed a vast and varied field that has shown marked diversification over the years. First authors have consistently become more diversified in both gender and country of institutional affiliation. Overall, the most common research topics were jury/judicial decision-making and eyewitness/memory, the most common legal connections were to criminal law and mental health law, and the most common psychology connection was to social-cognitive psychology. Research in psychology and law has the potential to impact both academic researchers and the legal system. Articles published in LHB appear to accomplish both

Potential for Self-reporting of Older Adult Maltreatment: An Empirical Examination

This Article examines state statutes providing for the mandatory reporting of older adult maltreatment. These statutes are important in protecting older adults from potential victimization at the hands of both formal and informal caregivers. Nevertheless, Professor Brank, Ms. Wylie, and Mr. Hamm argue that these statutes undermine older adults’ autonomy and individual decision making because the statutes are modeled off the parens patriae framework of child maltreatment statutes. The authors believe these statutes effectively disempower older adults because older adults, unlike children, should be considered competent decision makers unless adjudicated otherwise. The authors contend that this system is the product of improperly tailored models as well as ageism. To cure this ill in state maltreatment statutes, the authors argue that states could amend their statutes to place responsibility on older adults to self-report abuse. To further this contention, the authors developed a novel empirical study to examine how likely a sample of older adults would be to self-report maltreatment, under what circumstances they would be more likely to report, and to whom they would report. The study results demonstrate that older adults are capable of recognizing and willing to report abuse in both formal and informal caregiver situations. The authors posit that this is strong evidence that older adult maltreatment could be better addressed through empowerment of older adults rather than borrowing from the child abuse system that further disempowers them

Public health framing and attribution: Analysis of the first lady’s remarks and news coverage on childhood obesity

First Lady Michelle Obama’s public health promotion “Let’s Move” seeks to place children on a path to better health by giving families access to health education and fostering healthier environments. We examined the use of public health framing and attribution of responsibility in the First Lady’s remarks and newspaper articles reporting on childhood obesity. We coded the Whitehouse.gov website for remarks made by the First Lady regarding the childhood obesity prevention program “Let’s Move.” Of the 103 remarks coded, 35% of the remarks used public health framing. The First Lady’s remarks attributed responsibility and solutions for the childhood obesity crisis in terms of environmental factors, rather than individual factors. Using the same themes, we coded a sample of 260 articles that reported on “Let’s Move” specifically or childhood obesity generally, published during the same time period as the First Lady’s remarks. Approximately 20% of the articles used public health framing and similarly attributed childhood obesity to environmental factors. When comparing the two outlets, themes in the news articles were similar to the First Lady’s remarks; however, each lacked complete public health framing, which may contribute to less effective public health messaging

Measuring Older Adult Confidence in the Courts and Law Enforcement

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a viable tool for researchers and practitioners interested in understanding older adults’ confidence in these institutions. We conclude by discussing the implications of our work on efforts to improve interactions between older adults and legal institutions, and we highlight avenues for further research

Potential for Self-reporting of Older Adult Maltreatment: An Empirical Examination

This Article examines state statutes providing for the mandatory reporting of older adult maltreatment. These statutes are important in protecting older adults from potential victimization at the hands of both formal and informal caregivers. Nevertheless, Professor Brank, Ms. Wylie, and Mr. Hamm argue that these statutes undermine older adults’ autonomy and individual decision making because the statutes are modeled off the parens patriae framework of child maltreatment statutes. The authors believe these statutes effectively disempower older adults because older adults, unlike children, should be considered competent decision makers unless adjudicated otherwise. The authors contend that this system is the product of improperly tailored models as well as ageism. To cure this ill in state maltreatment statutes, the authors argue that states could amend their statutes to place responsibility on older adults to self-report abuse. To further this contention, the authors developed a novel empirical study to examine how likely a sample of older adults would be to self-report maltreatment, under what circumstances they would be more likely to report, and to whom they would report. The study results demonstrate that older adults are capable of recognizing and willing to report abuse in both formal and informal caregiver situations. The authors posit that this is strong evidence that older adult maltreatment could be better addressed through empowerment of older adults rather than borrowing from the child abuse system that further disempowers them

Disputed Paraphilia Diagnoses and Legal Decision Making: A Case Law Survey of Paraphilia NOS, Nonconsent

Paraphilia diagnoses applied in forensic settings are an ongoing subject of debate among psycholegal professionals and scholars. Disagreements pertain to both means-related issues having to do with issues of diagnostic reliability and validity, and ends-related issues regarding the consequences inherent to the legal contexts in which the diagnoses arise. To provide a fresh outlook on some of the issues, the present study entailed a systematic survey of U.S. case law to investigate the history, extent, and nature of forensic uses of a controversial paraphilia diagnosis, paraphilia not otherwise specified, nonconsent. Descriptive analyses revealed that use of the diagnosis, which occurred almost exclusively in adult sexually violent predator cases, increased substantially over the past decade, with cases in 3 states accounting for over 2/3 of the total observed prevalence rate. In the majority of cases examined in detail, the support that evaluators relied upon in making the diagnosis was either not clearly described or behaviorally inferential in nature, and the diagnosis was often accompanied by other mental and personality disorder diagnoses. An opposing expert was observed in more than half of the cases, approximately 1/3 of whom noted the debate surrounding the diagnosis and nearly 2/3 of whom opined that there was insufficient evidentiary support for the diagnosis in the case at bar. Finally, all courts that reached the issue of the admissibility of the diagnosis between 2008 and 2011 admitted it, and most courts also found it sufficient to support classifying an individual as a sexually violent predator

Four Decades of the Journal \u3ci\u3eLaw and Human Behavior\u3c/i\u3e: A Content Analysis

Although still relatively young, the journal Law and Human Behavior (LHB) has amassed a publication history of more than 1300 full-length articles over four decades. Yet, no systematic analysis of the journal has been done until now. The current research coded all full-length articles to examine trends over time, predictors of the number of Google Scholar citations, and predictors of whether an article was cited by a court case. The predictors of interest included article organization, research topics, areas of law, areas of psychology, first-author gender, first-author country of institutional affiliation, and samples employed. Results revealed a vast and varied field that has shown marked diversification over the years. First authors have consistently become more diversified in both gender and country of institutional affiliation. Overall, the most common research topics were jury/judicial decision-making and eyewitness/memory, the most common legal connections were to criminal law and mental health law, and the most common psychology connection was to social-cognitive psychology. Research in psychology and law has the potential to impact both academic researchers and the legal system. Articles published in LHB appear to accomplish both