Humans have been gambling from the Stone Age, yet it is considered to be a pernicious activity. Gambling in India has been barred since 1867 and continues to be barred under the same law, and several state legislation. Traditionally, the questions around what constitutes gambling and what does not have been determined by answering whether that game is a “game of skill” or a “game of chance”? A game of skill is allowed by law, whereas a game of chance that involves money is gambling and is barred. The Internet has brought a paradigm shift in the way games operate. Several states have brought specialized legislation to ban online gambling. The question of Ludo being a game of chance or a game of skill has now cropped up before the Bombay High Court. This article will go through what constitutes a game of skill and a game of chance, especially in the realm of online games. Consequentially, we will try to answer whether Ludo is a game of skill or a game of chance and whether it could be contravening the provisions of Maharashtra Prevention of the Gambling Act, 1887.
{"title":"Chance and Skil: Studying Ludo Supreme","authors":"G. Pathak","doi":"10.2139/ssrn.3901531","DOIUrl":"https://doi.org/10.2139/ssrn.3901531","url":null,"abstract":"Humans have been gambling from the Stone Age, yet it is considered to be a pernicious activity. Gambling in India has been barred since 1867 and continues to be barred under the same law, and several state legislation. Traditionally, the questions around what constitutes gambling and what does not have been determined by answering whether that game is a “game of skill” or a “game of chance”? A game of skill is allowed by law, whereas a game of chance that involves money is gambling and is barred. The Internet has brought a paradigm shift in the way games operate. Several states have brought specialized legislation to ban online gambling. The question of Ludo being a game of chance or a game of skill has now cropped up before the Bombay High Court. This article will go through what constitutes a game of skill and a game of chance, especially in the realm of online games. Consequentially, we will try to answer whether Ludo is a game of skill or a game of chance and whether it could be contravening the provisions of Maharashtra Prevention of the Gambling Act, 1887.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125850117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When a district court denies qualified immunity at summary judgment, defendants have a limited right to immediately appeal that decision. In Johnson v. Jones, the Supreme Court held that the courts of appeals have jurisdiction to address only whether the facts assumed by the district court amount to a clearly established violation of federal law. They lack jurisdiction to look behind the facts that the district assumed were true to see whether the evidence supports those facts. Despite this seemingly clear rule, defendants regularly flout Johnson's jurisdictional limits, taking improper appeals, creating extra work for appellate courts, and imposing wholly unnecessary costs and delays on civil rights plaintiffs. Plaintiffs and even courts also are sometimes confused by the rule in Johnson. And the Supreme Court's decision in Scott v. Harris — which appeared to violate Johnson's limits without mentioning Johnson or even appellate jurisdiction — has made the jurisdictional rules governing qualified-immunity appeals even less certain. In this article, I address the law governing jurisdiction in qualified-immunity appeals from summary judgment. I show that Johnson can be read only to mean that the courts of appeals generally lack jurisdiction to review whether the summary-judgment record supports the district court's assumed facts. I explain how to reconcile the analysis in Scott with the rule in Johnson: Scott created an exception to the general limit on reviewing the district court's assumed facts when something in the record blatantly contradicts those facts. I argue—based on my analysis of 12 years of decisions invoking this exception—that Scott's blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would both clarify and improve the law governing qualified-immunity appeals.
{"title":"Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals","authors":"Bryan D. Lammon","doi":"10.2139/SSRN.3428456","DOIUrl":"https://doi.org/10.2139/SSRN.3428456","url":null,"abstract":"When a district court denies qualified immunity at summary judgment, defendants have a limited right to immediately appeal that decision. In Johnson v. Jones, the Supreme Court held that the courts of appeals have jurisdiction to address only whether the facts assumed by the district court amount to a clearly established violation of federal law. They lack jurisdiction to look behind the facts that the district assumed were true to see whether the evidence supports those facts. Despite this seemingly clear rule, defendants regularly flout Johnson's jurisdictional limits, taking improper appeals, creating extra work for appellate courts, and imposing wholly unnecessary costs and delays on civil rights plaintiffs. Plaintiffs and even courts also are sometimes confused by the rule in Johnson. And the Supreme Court's decision in Scott v. Harris — which appeared to violate Johnson's limits without mentioning Johnson or even appellate jurisdiction — has made the jurisdictional rules governing qualified-immunity appeals even less certain. \u0000 \u0000In this article, I address the law governing jurisdiction in qualified-immunity appeals from summary judgment. I show that Johnson can be read only to mean that the courts of appeals generally lack jurisdiction to review whether the summary-judgment record supports the district court's assumed facts. I explain how to reconcile the analysis in Scott with the rule in Johnson: Scott created an exception to the general limit on reviewing the district court's assumed facts when something in the record blatantly contradicts those facts. I argue—based on my analysis of 12 years of decisions invoking this exception—that Scott's blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would both clarify and improve the law governing qualified-immunity appeals.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121076105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications. It is suggested that since naked statistical evidence cannot generate knowledge, it cannot be the basis for assertions of facts; and assertions of facts are practically and legally important: they are essential in order to establish the court's responsibility for its decisions and its errors. Such responsibility is needed in order to maintain the legitimacy of the legal system; to avoid unfairness to defendants; and to ensure that legal decision‐makers have no valid claims against the decision‐making arrangement. As a result, the legal system is inclined to avoid statistical evidence altogether.
{"title":"Statistical Evidence, Assertions and Responsibility","authors":"Liat Levanon","doi":"10.1111/1468-2230.12404","DOIUrl":"https://doi.org/10.1111/1468-2230.12404","url":null,"abstract":"The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications. It is suggested that since naked statistical evidence cannot generate knowledge, it cannot be the basis for assertions of facts; and assertions of facts are practically and legally important: they are essential in order to establish the court's responsibility for its decisions and its errors. Such responsibility is needed in order to maintain the legitimacy of the legal system; to avoid unfairness to defendants; and to ensure that legal decision‐makers have no valid claims against the decision‐making arrangement. As a result, the legal system is inclined to avoid statistical evidence altogether.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115986933","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges.
{"title":"Why Legal Formalism is Not a Stupid Thing","authors":"P. Troop","doi":"10.1111/raju.12225","DOIUrl":"https://doi.org/10.1111/raju.12225","url":null,"abstract":"Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131147363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Juries are a fundamental element of the criminal justice system. In this paper, we model jury decision-making as a function of three institutional variables: jury size, voting requirement, and the applicable standard of proof. Changes in jury size, voting requirements, and standards of proof affect the accuracy and cost of criminal adjudication. Our framework helps appraise some U.S. Supreme Court decisions and legal reforms on jury design. We find that the use of smaller or non-unanimous juries, if combined with a high standard of proof, may be superior to alternative jury structures. The results apply not only to juries, but also to other collective decision-making bodies such as court panels, corporate boards, and management teams.
{"title":"Designing Optimal Juries","authors":"Alice Guerra, Barbara Luppi, F. Parisi","doi":"10.2139/ssrn.2973943","DOIUrl":"https://doi.org/10.2139/ssrn.2973943","url":null,"abstract":"Juries are a fundamental element of the criminal justice system. In this paper, we model jury decision-making as a function of three institutional variables: jury size, voting requirement, and the applicable standard of proof. Changes in jury size, voting requirements, and standards of proof affect the accuracy and cost of criminal adjudication. Our framework helps appraise some U.S. Supreme Court decisions and legal reforms on jury design. We find that the use of smaller or non-unanimous juries, if combined with a high standard of proof, may be superior to alternative jury structures. The results apply not only to juries, but also to other collective decision-making bodies such as court panels, corporate boards, and management teams.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130921604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-02-01DOI: 10.7551/mitpress/10082.003.0020
E. Papaioannou, Stavroula Karatza
This paper discusses the key structural deficiencies of the Greek justice system and proposes some concrete policy reforms. In the first part, we provide an anatomy of the Greek legal system using cross-country indicators reflecting the formalism, quality, and speed of the resolution mechanisms. The analysis shows that the Greek justice system is failing to protect citizens, as delays in all types of courts exceed five years and in some instances reach a decade. At the same the quality of laws protecting investors, even property, is low. Using comparative data from other EU jurisdictions, we show that the key reasons behind these failures are the absence of information technology, the lack of supporting to judges staff, the absence of specialized courts and tribunals, and a hugely dysfunctional administration. At the same time, there are minimal checks and balances. In the second part, we detail a set of policy proposals. Our proposals consist of immediate measures for clearing the large backlog and a set of more ambitious medium-term reforms (many of which require a constitutional amendment). Our proposals aim to make the Greek justice system professionally administered, less formalistic, suitably flexible, more responsive and more accountable to society at large. Given the strong link between legal institutions and development, justice reform is an absolute priority of the reform agenda and a sine qua non-condition for the much-needed sustainable recovery of the Greek economy.
{"title":"The Greek Justice System: Collapse and Reform","authors":"E. Papaioannou, Stavroula Karatza","doi":"10.7551/mitpress/10082.003.0020","DOIUrl":"https://doi.org/10.7551/mitpress/10082.003.0020","url":null,"abstract":"This paper discusses the key structural deficiencies of the Greek justice system and proposes some concrete policy reforms. In the first part, we provide an anatomy of the Greek legal system using cross-country indicators reflecting the formalism, quality, and speed of the resolution mechanisms. The analysis shows that the Greek justice system is failing to protect citizens, as delays in all types of courts exceed five years and in some instances reach a decade. At the same the quality of laws protecting investors, even property, is low. Using comparative data from other EU jurisdictions, we show that the key reasons behind these failures are the absence of information technology, the lack of supporting to judges staff, the absence of specialized courts and tribunals, and a hugely dysfunctional administration. At the same time, there are minimal checks and balances. In the second part, we detail a set of policy proposals. Our proposals consist of immediate measures for clearing the large backlog and a set of more ambitious medium-term reforms (many of which require a constitutional amendment). Our proposals aim to make the Greek justice system professionally administered, less formalistic, suitably flexible, more responsive and more accountable to society at large. Given the strong link between legal institutions and development, justice reform is an absolute priority of the reform agenda and a sine qua non-condition for the much-needed sustainable recovery of the Greek economy.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124299906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the course of the past thirty years, the Brazilian judiciary has been remade. The courts have left behind the timidity of the military authoritarian era, as death and retirements gave rise to new corps of senior judges and a new constitution transformed their basic institutional foundations. Greater independence, increased legitimacy, and the democratic promise of equality before the law have all contributed to ballooning public demand. New constitutional rules and prerogatives have also placed the courts squarely in the midst of the most important political debates of the past three decades in the country. Nonetheless, Lula’s statement in the epigraph above reflected the broader public perception at the turn of the century: Brazilian courts needed a significant overhaul if they were to effectively address concerns about judicial bias, inconsistency, and corruption. Following more than a decade of debate, a major constitutional reform was approved in 2004, adding to a number of smaller-bore changes that were made over the preceding two decades. Together, these reforms have significantly altered the court system. Yet despite these changes, the transformation of the judicial system remains incomplete, and has yet to achieve all of the aspirations placed upon it by Brazilian society. Indeed, at this writing, there is once again a building discussion on the need for new reforms to improve court performance. This paper evaluates continuity and change in the Brazilian courts, and assesses this “new” Judiciary. We examine the institutional evolution of Brazil’s judicial system with an eye to the expected role of courts in a democracy, what could be called a “democratic judiciary.” The paper begins with a discussion of the overall structure of Brazil’s judicial system in the hopes of making clear the dilemmas that have driven reform since 1985. The second section summarizes reform efforts. The third section evaluates the court system’s effects on business, public policy, corruption and democratic legitimacy in Brazil over the past thirty years. The final section examines the current state of the courts, and recent discussions of possible additional reforms.
{"title":"Opening the Black Box: Three Decades of Reforms to Brazil's Judicial System","authors":"Luciano Da Ros, Matthew M. Taylor","doi":"10.2139/ssrn.3028731","DOIUrl":"https://doi.org/10.2139/ssrn.3028731","url":null,"abstract":"Over the course of the past thirty years, the Brazilian judiciary has been remade. The courts have left behind the timidity of the military authoritarian era, as death and retirements gave rise to new corps of senior judges and a new constitution transformed their basic institutional foundations. Greater independence, increased legitimacy, and the democratic promise of equality before the law have all contributed to ballooning public demand. New constitutional rules and prerogatives have also placed the courts squarely in the midst of the most important political debates of the past three decades in the country. \u0000Nonetheless, Lula’s statement in the epigraph above reflected the broader public perception at the turn of the century: Brazilian courts needed a significant overhaul if they were to effectively address concerns about judicial bias, inconsistency, and corruption. Following more than a decade of debate, a major constitutional reform was approved in 2004, adding to a number of smaller-bore changes that were made over the preceding two decades. Together, these reforms have significantly altered the court system. Yet despite these changes, the transformation of the judicial system remains incomplete, and has yet to achieve all of the aspirations placed upon it by Brazilian society. Indeed, at this writing, there is once again a building discussion on the need for new reforms to improve court performance. \u0000This paper evaluates continuity and change in the Brazilian courts, and assesses this “new” Judiciary. We examine the institutional evolution of Brazil’s judicial system with an eye to the expected role of courts in a democracy, what could be called a “democratic judiciary.” The paper begins with a discussion of the overall structure of Brazil’s judicial system in the hopes of making clear the dilemmas that have driven reform since 1985. The second section summarizes reform efforts. The third section evaluates the court system’s effects on business, public policy, corruption and democratic legitimacy in Brazil over the past thirty years. The final section examines the current state of the courts, and recent discussions of possible additional reforms.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121256035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identify desireable properties of dispositional utility functions and the relationship between dispositional utility and expected utility for rules. We examine the impact on expected rule utility from case distributions that are sensitive to the enforced rule. We illustrate how to combine dipositional utility with efforts costs and time constraints. We provide examples of case spaces, dispositional utility functions, and expected utility functions for enforced rules. This essay is a draft chapter of a book-in-progress on the positive political theory of courts.
{"title":"Chapter 3: What Do Judges Want? How to Model Judicial Preferences","authors":"C. Cameron, L. Kornhauser","doi":"10.2139/ssrn.2979419","DOIUrl":"https://doi.org/10.2139/ssrn.2979419","url":null,"abstract":"We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identify desireable properties of dispositional utility functions and the relationship between dispositional utility and expected utility for rules. We examine the impact on expected rule utility from case distributions that are sensitive to the enforced rule. We illustrate how to combine dipositional utility with efforts costs and time constraints. We provide examples of case spaces, dispositional utility functions, and expected utility functions for enforced rules. \u0000This essay is a draft chapter of a book-in-progress on the positive political theory of courts.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117123800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. Saar, Kerly Randlane, Maret Güldenkoh, Uno Silberg, T. Elling
In Estonia, since 2001 the function of the enforcement of public law claims, such as fines or taxes, has been transferred to freelance bailiffs. The intention was to create profit motives for private enforcers to increase the effectiveness of the enforcement system. In this paper it is shown that the remuneration scheme for bailiffs that is currently applied tends to lead to inefficiently low level of enforced public law claims. Through quantitative calculations it is illustrated that there might exist alternatives that significantly increase the economic efficiency of the enforcement system.
{"title":"The Efficiency of Private Enforcement of Public Law Claims in Estonia","authors":"I. Saar, Kerly Randlane, Maret Güldenkoh, Uno Silberg, T. Elling","doi":"10.2139/ssrn.2840823","DOIUrl":"https://doi.org/10.2139/ssrn.2840823","url":null,"abstract":"In Estonia, since 2001 the function of the enforcement of public law claims, such as fines or taxes, has been transferred to freelance bailiffs. The intention was to create profit motives for private enforcers to increase the effectiveness of the enforcement system. In this paper it is shown that the remuneration scheme for bailiffs that is currently applied tends to lead to inefficiently low level of enforced public law claims. Through quantitative calculations it is illustrated that there might exist alternatives that significantly increase the economic efficiency of the enforcement system.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122592941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client-expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.
{"title":"Adversarial Bias, Litigation, and the Daubert Test: An Economic Approach","authors":"Chulyoung Kim","doi":"10.2139/ssrn.2760819","DOIUrl":"https://doi.org/10.2139/ssrn.2760819","url":null,"abstract":"The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client-expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127065715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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