This article focuses on the methodological lessons learned while conducting a legal research study of the lower criminal courts by gathering observational and interview data to understand why many defendants charged with misdemeanor or summary offenses proceed without counsel. The present study describes the socio-legal methodology employed and draws from project memorandums and research assistants’ field notes gathered during court observations and written reflections following defendant interviews. The present article addresses the methodological obstacles and lessons learned from gathering complex data on rights waivers and focuses on how we might improve the legal study of the lower criminal courts and answer critical constitutional and procedural questions by improving our legal methods.
{"title":"Studying Unrepresented Defendants in the Lower Criminal Courts","authors":"Alisa Smith, Natalie Mousa, Sarah K. Stice","doi":"10.5553/rem/.000082","DOIUrl":"https://doi.org/10.5553/rem/.000082","url":null,"abstract":"This article focuses on the methodological lessons learned while conducting a legal research study of the lower criminal courts by gathering observational and interview data to understand why many defendants charged with misdemeanor or summary offenses proceed without counsel. The present study describes the socio-legal methodology employed and draws from project memorandums and research assistants’ field notes gathered during court observations and written reflections following defendant interviews. The present article addresses the methodological obstacles and lessons learned from gathering complex data on rights waivers and focuses on how we might improve the legal study of the lower criminal courts and answer critical constitutional and procedural questions by improving our legal methods.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"56 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140400142","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}
Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself but also for current debates on the limits of legality in times of emergency.
{"title":"Aims and Methods of Legal History – The Case of the Roman Dictatorship","authors":"Lukas van den Berge","doi":"10.5553/rem/.000081","DOIUrl":"https://doi.org/10.5553/rem/.000081","url":null,"abstract":"Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself but also for current debates on the limits of legality in times of emergency.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"146 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140470483","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}
To be an international lawyer is to perform international law behavior. As Schechner has put it, ‘Performance means: never for the first time. It means for the second to the nth time. Performance is twice-behaved behavior’ (Schechner, 1985, p. 36). Moot courts are a classical way to teach students ‘twice-behaved legal behavior’. In international law, moot court competitions have proliferated lately. However, the format of the moot court is copied rather uncritically, and not much attention is devoted to other, more reflexive theatrical means. In this article I try to open up space for such critical thinking beyond moot courts. I study moot courts as a form of performance, as a re-enactment. This perspective on moot courts allows me to focus on one of the core questions brought up in existing studies on re-enactments: who or what is re-enacted in such role plays? The equally main question is whether it is possible to reenact court cases differently. In order to answer this question, I will explore two alternative forms of reenactment of international law behavior: experimental moot courts and documentary role-plays. I examine what sort of behavior, what sort of character is restored in these two other forms of role-play.
国际律师是一种国际法行为。正如Schechner所说，“业绩意味着:从来都不是第一次。”它的意思是第二次到第n次。绩效是双重行为”(Schechner, 1985, p. 36)。模拟法庭是教授学生“双重行为法律行为”的一种经典方式。在国际法方面，模拟法庭竞赛最近激增。然而，模拟法庭的形式被相当不加批判地复制，而对其他更具反身性的戏剧手段的关注并不多。在本文中，我试图在模拟法庭之外为这种批判性思维开辟空间。我把模拟法庭作为一种表演形式，作为一种重演。这种对模拟法庭的看法使我能够专注于现有的关于重演的研究中提出的一个核心问题:在这种角色扮演中重演的是谁或什么?同样重要的问题是，是否有可能以不同的方式重现法庭案件。为了回答这个问题，我将探讨国际法行为再现的两种替代形式:实验性模拟法庭和纪实角色扮演。我考察了在另外两种形式的角色扮演中，什么样的行为，什么样的性格得到了恢复。
{"title":"Moot Court Competitions, Experimental Moot Courts and Documentary Role Plays","authors":"Wouter Werner","doi":"10.5553/rem/.000079","DOIUrl":"https://doi.org/10.5553/rem/.000079","url":null,"abstract":"To be an international lawyer is to perform international law behavior. As Schechner has put it, ‘Performance means: never for the first time. It means for the second to the nth time. Performance is twice-behaved behavior’ (Schechner, 1985, p. 36). Moot courts are a classical way to teach students ‘twice-behaved legal behavior’. In international law, moot court competitions have proliferated lately. However, the format of the moot court is copied rather uncritically, and not much attention is devoted to other, more reflexive theatrical means. In this article I try to open up space for such critical thinking beyond moot courts. I study moot courts as a form of performance, as a re-enactment. This perspective on moot courts allows me to focus on one of the core questions brought up in existing studies on re-enactments: who or what is re-enacted in such role plays? The equally main question is whether it is possible to reenact court cases differently. In order to answer this question, I will explore two alternative forms of reenactment of international law behavior: experimental moot courts and documentary role-plays. I examine what sort of behavior, what sort of character is restored in these two other forms of role-play.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"23 24","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135371433","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}
In this article, the question is raised to what extent the methodology debate in legal scholarship has improved the practice by PhD researchers of justifying their methodology. Over the past twenty years, there has been much more consideration and discussion of legal methods, especially in Dutch academia. Taking this Dutch debate as a starting point, Taekema and Van Klink argue that it has led to a normative framework with which the methodology of legal research can be assessed. Formulating a set of topics and questions that form the core of this framework, they apply it to a set of six fairly recent PhD dissertations. Building on these cases, they observe that some progress is made from a methodological point of view, compared with the situation described by Tijssen in his PhD thesis from 2006. Taekema and Van Klink conclude, however, that the methodology debate appears not to have led to a significantly better practice of methodological justification, at least not yet on all assessment criteria. The normative framework of a dissertation, for instance, still deserves attention.
{"title":"Progress in Legal Methodology – A Methodological Assessment of Six PhD Theses","authors":"S. Taekema, Bart van Klink","doi":"10.5553/rem/.000075","DOIUrl":"https://doi.org/10.5553/rem/.000075","url":null,"abstract":"In this article, the question is raised to what extent the methodology debate in legal scholarship has improved the practice by PhD researchers of justifying their methodology. Over the past twenty years, there has been much more consideration and discussion of legal methods, especially in Dutch academia. Taking this Dutch debate as a starting point, Taekema and Van Klink argue that it has led to a normative framework with which the methodology of legal research can be assessed. Formulating a set of topics and questions that form the core of this framework, they apply it to a set of six fairly recent PhD dissertations. Building on these cases, they observe that some progress is made from a methodological point of view, compared with the situation described by Tijssen in his PhD thesis from 2006. Taekema and Van Klink conclude, however, that the methodology debate appears not to have led to a significantly better practice of methodological justification, at least not yet on all assessment criteria. The normative framework of a dissertation, for instance, still deserves attention.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130196829","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}
Migration and asylum are global phenomena. Yet they lack a universally accepted and applicable legal regulatory framework, which leads to fragmentation across different levels and fields of analysis. In this contribution, we focus on migration and asylum law (MAL) which we understand to be made up of national, regional and international laws as well as their implementation in practice. The aim of this article is to identify developments in the area of MAL and the scholarly voices that have contributed to ground-breaking legal scholarship. We approach the question of progress in MAL scholarship based on our combined expertise in human rights, refugee law and migration law and bring forward how, in these often-separate legal fields, similar progress has been made. We focus our discussion on three interactions that we consider to have changed the way in which legal scholarship addresses migration and asylum: interactions between national and other sources of law; interactions between different fields of law, crossing into human rights law, family law or labour law; and interactions with various empirical scholarships (section 3). Learning from sociology and anthropology scholarships, the intersection of social stratifications such as gender, race and ethnicity, and class is now firmly grounded in MAL scholarship, inspiring the methodological shift from black letter law to empirical legal studies.
{"title":"Progress in Migration and Asylum Law scholarship – International, Intersectional, and Interdisciplinary","authors":"Mariana Gkliati, Tesseltje de Lange, Sandra Mantu","doi":"10.5553/rem/.000077","DOIUrl":"https://doi.org/10.5553/rem/.000077","url":null,"abstract":"Migration and asylum are global phenomena. Yet they lack a universally accepted and applicable legal regulatory framework, which leads to fragmentation across different levels and fields of analysis. In this contribution, we focus on migration and asylum law (MAL) which we understand to be made up of national, regional and international laws as well as their implementation in practice. The aim of this article is to identify developments in the area of MAL and the scholarly voices that have contributed to ground-breaking legal scholarship. We approach the question of progress in MAL scholarship based on our combined expertise in human rights, refugee law and migration law and bring forward how, in these often-separate legal fields, similar progress has been made. We focus our discussion on three interactions that we consider to have changed the way in which legal scholarship addresses migration and asylum: interactions between national and other sources of law; interactions between different fields of law, crossing into human rights law, family law or labour law; and interactions with various empirical scholarships (section 3). Learning from sociology and anthropology scholarships, the intersection of social stratifications such as gender, race and ethnicity, and class is now firmly grounded in MAL scholarship, inspiring the methodological shift from black letter law to empirical legal studies.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135428489","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}
Marin Coerts, B. Laarman, J. Rutgers, W. Sauter, Arjen van Witteloostuijn
Behavioral economics builds on insights from behavioural sciences, primarily psychology, and aims to explain the behaviour of (groups of) individuals under conditions of scarcity. It applies an empirical methodology grounded in econometrics and based on experimental research. The authors’ proposition is that behavioural law and economics rooted in experiments is a valuable approach to legal studies that complements pre-existing law and economics. Experiments maximise the opportunity to identify causal links and norms as building blocks of the law as interventions in human behaviour, and hence are well suited in the context of empirical legal studies. The research design menu includes variables such as hypothetical decisions versus actual behaviour, experiments with or without full randomisation, pure or quasi, lab versus field, and natural experiments versus experiments that can be manipulated. Behavioural economics operates under conditions of incentive compatibility and the no-deception principle. In this article, the authors set out a research agenda for behavioural law and economics research, covering private law (consumer and contract law as well as liability and tort law), administrative law, and economic law.
{"title":"Naar een gedragseconomie van het recht","authors":"Marin Coerts, B. Laarman, J. Rutgers, W. Sauter, Arjen van Witteloostuijn","doi":"10.5553/rem/.000078","DOIUrl":"https://doi.org/10.5553/rem/.000078","url":null,"abstract":"Behavioral economics builds on insights from behavioural sciences, primarily psychology, and aims to explain the behaviour of (groups of) individuals under conditions of scarcity. It applies an empirical methodology grounded in econometrics and based on experimental research. The authors’ proposition is that behavioural law and economics rooted in experiments is a valuable approach to legal studies that complements pre-existing law and economics. Experiments maximise the opportunity to identify causal links and norms as building blocks of the law as interventions in human behaviour, and hence are well suited in the context of empirical legal studies. The research design menu includes variables such as hypothetical decisions versus actual behaviour, experiments with or without full randomisation, pure or quasi, lab versus field, and natural experiments versus experiments that can be manipulated. Behavioural economics operates under conditions of incentive compatibility and the no-deception principle. In this article, the authors set out a research agenda for behavioural law and economics research, covering private law (consumer and contract law as well as liability and tort law), administrative law, and economic law.","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"188 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133492988","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}
{"title":"Critical Thinking in Academic Legal Education","authors":"Bart van Klink","doi":"10.5553/rem/.000076","DOIUrl":"https://doi.org/10.5553/rem/.000076","url":null,"abstract":"","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126885973","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}
{"title":"De podcast als toets binnen rechtsgeleerdheid","authors":"W. Janssen, D.A.G. van Toor","doi":"10.5553/rem/.000074","DOIUrl":"https://doi.org/10.5553/rem/.000074","url":null,"abstract":"","PeriodicalId":356307,"journal":{"name":"Law and Method","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127530773","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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