Pub Date : 2021-10-02DOI: 10.1080/0098261X.2021.2047291
Amy Steigerwalt
{"title":"Letter from the Editor–Volume 42, Issues 3,4","authors":"Amy Steigerwalt","doi":"10.1080/0098261X.2021.2047291","DOIUrl":"https://doi.org/10.1080/0098261X.2021.2047291","url":null,"abstract":"","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"77 1","pages":"227 - 229"},"PeriodicalIF":0.7,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75992459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-15DOI: 10.1080/0098261X.2021.1927267
A. M. Clark, A. Davies, K. M. Curtis
Abstract Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.
{"title":"Access to Counsel for Defendants in Lower Criminal Courts","authors":"A. M. Clark, A. Davies, K. M. Curtis","doi":"10.1080/0098261X.2021.1927267","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1927267","url":null,"abstract":"Abstract Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"9 5","pages":"85 - 101"},"PeriodicalIF":0.7,"publicationDate":"2021-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72401856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-24DOI: 10.1080/0098261X.2021.1967230
Abigail A. Matthews
Abstract Majority and separate opinions reflect the justices’ deliberations and strategic decision-making. As justices try to shape the legal outcome, private disagreements during the opinion-writing process spill out into the open, becoming the written words of majority and separate opinions. In this article, I ask how justices use separate opinions to shape the law. I argue that the length of an opinion provides a reasonable proxy of the law and the Court’s decision-making at work. Using time series techniques on the number of words in majority and separate opinions from 1953–2009, I examine whether there is a relationship between the number of words in majority and separate opinions. I demonstrate there is a fractional cointegration relationship between majority and separate opinion length. The majority and separate opinion relationship means there will not be a time in which the Court produces incredibly long separate opinions and succinct majority opinions, or lengthy majority opinions and brief separate opinions. I also find that separate opinion length causes the majority opinion to be shorter or longer. Error correction model results indicate that discussions that occur in one term do not conclude when the Court’s term ends, the effects continue in subsequent terms and cases. The law, as the Court generates it in its majority opinions, is shaped by separate opinions.
{"title":"The Justices’ Words: The Relationship between Majority and Separate Opinions","authors":"Abigail A. Matthews","doi":"10.1080/0098261X.2021.1967230","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1967230","url":null,"abstract":"Abstract Majority and separate opinions reflect the justices’ deliberations and strategic decision-making. As justices try to shape the legal outcome, private disagreements during the opinion-writing process spill out into the open, becoming the written words of majority and separate opinions. In this article, I ask how justices use separate opinions to shape the law. I argue that the length of an opinion provides a reasonable proxy of the law and the Court’s decision-making at work. Using time series techniques on the number of words in majority and separate opinions from 1953–2009, I examine whether there is a relationship between the number of words in majority and separate opinions. I demonstrate there is a fractional cointegration relationship between majority and separate opinion length. The majority and separate opinion relationship means there will not be a time in which the Court produces incredibly long separate opinions and succinct majority opinions, or lengthy majority opinions and brief separate opinions. I also find that separate opinion length causes the majority opinion to be shorter or longer. Error correction model results indicate that discussions that occur in one term do not conclude when the Court’s term ends, the effects continue in subsequent terms and cases. The law, as the Court generates it in its majority opinions, is shaped by separate opinions.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"21 1","pages":"174 - 190"},"PeriodicalIF":0.7,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82657351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-23DOI: 10.1080/0098261X.2021.1967232
M. R. Rose, Nisa R. Sheikh
Abstract Research typically finds some variability in verdicts across judges versus juries, indicating juries’ added value in legal disputes; that is, juries can and do see cases differently than judges. In an exploratory study, we examine termination of parental rights (TPR) trials, a nontraditional context in which a few states permit juries as well as judges to make decisions. Prior unpublished reports suggest that both judges and juries overwhelmingly terminate rights, but we questioned whether the same pattern would emerge in an area (Texas) with a strong anti-government history. Examining 60 trials in one county, with verdicts on 110 parents, we find that parents used juries infrequently (15% of trials, 12% of parental verdicts) and that terminations dominated verdict outcomes for both judges and juries. An intensively coded subsample of cases revealed few substantive differences in case types, although jury trials last nearly four times as long as bench trials. We conclude that juries are unlikely to provide different outcomes to parents fighting TPR, but we discuss other potential value of jury trials in these cases. Nonetheless, states may need to balance such advantages against cost considerations stemming from longer, more intensive trials.
{"title":"Examining Value-Added: Jury-Trial Rights in Termination of Parental Rights Cases","authors":"M. R. Rose, Nisa R. Sheikh","doi":"10.1080/0098261X.2021.1967232","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1967232","url":null,"abstract":"Abstract Research typically finds some variability in verdicts across judges versus juries, indicating juries’ added value in legal disputes; that is, juries can and do see cases differently than judges. In an exploratory study, we examine termination of parental rights (TPR) trials, a nontraditional context in which a few states permit juries as well as judges to make decisions. Prior unpublished reports suggest that both judges and juries overwhelmingly terminate rights, but we questioned whether the same pattern would emerge in an area (Texas) with a strong anti-government history. Examining 60 trials in one county, with verdicts on 110 parents, we find that parents used juries infrequently (15% of trials, 12% of parental verdicts) and that terminations dominated verdict outcomes for both judges and juries. An intensively coded subsample of cases revealed few substantive differences in case types, although jury trials last nearly four times as long as bench trials. We conclude that juries are unlikely to provide different outcomes to parents fighting TPR, but we discuss other potential value of jury trials in these cases. Nonetheless, states may need to balance such advantages against cost considerations stemming from longer, more intensive trials.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"12 1","pages":"191 - 202"},"PeriodicalIF":0.7,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87621910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-23DOI: 10.1080/0098261X.2021.1967231
Philip Chen, A. Bryan
Abstract In the last several decades a wide literature has developed around gendered perceptions of political leaders. However, to date, the lion’s share of this literature has examined elected officials. Here we argue that a similar effect can be found in perceptions of judges and judging. Using two survey experiments, we argue that the core quality by which judges are evaluated, “judiciousness,” is gendered masculine. In essence, when individuals are asked to evaluate nominees, personality and character information is used differently depending on the gender of the nominee. In particular, female nominees face a double standard, failing to benefit equally from positive personality information while male nominees enjoy greater support. Thus, even if female nominees are successful in obtaining Senate confirmation, they face a steeper hill to climb with how people perceive their judiciousness than a similarly qualified male nominee would.
{"title":"The Legal Double Standard: Gender, Personality Information, and the Evaluation of Supreme Court Nominees","authors":"Philip Chen, A. Bryan","doi":"10.1080/0098261X.2021.1967231","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1967231","url":null,"abstract":"Abstract In the last several decades a wide literature has developed around gendered perceptions of political leaders. However, to date, the lion’s share of this literature has examined elected officials. Here we argue that a similar effect can be found in perceptions of judges and judging. Using two survey experiments, we argue that the core quality by which judges are evaluated, “judiciousness,” is gendered masculine. In essence, when individuals are asked to evaluate nominees, personality and character information is used differently depending on the gender of the nominee. In particular, female nominees face a double standard, failing to benefit equally from positive personality information while male nominees enjoy greater support. Thus, even if female nominees are successful in obtaining Senate confirmation, they face a steeper hill to climb with how people perceive their judiciousness than a similarly qualified male nominee would.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"111 1","pages":"325 - 340"},"PeriodicalIF":0.7,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80340759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-07DOI: 10.1080/0098261x.2021.1926787
Rachael Houston
{"title":"Constant Change at the Wisconsin Ballot Box: Voting Rights at Issue in Luft v. Evers","authors":"Rachael Houston","doi":"10.1080/0098261x.2021.1926787","DOIUrl":"https://doi.org/10.1080/0098261x.2021.1926787","url":null,"abstract":"","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"69 1","pages":"110 - 112"},"PeriodicalIF":0.7,"publicationDate":"2021-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88785285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-07DOI: 10.1080/0098261x.2021.1926785
Amy Steigerwalt
Welcome to the first issue of Volume 42 for the Justice System Journal. JSJ is published under an arrangement between the National Center for State Courts and Routledge (Taylor & Francis). The Journal’s commitment is to providing an outlet for innovative, social scientific research on the myriad of issues that pertain to the third branch of government. Information about JSJ, including the Journal’s Aims & Scopes as well as instructions for manuscript submissions, can be found at our website: http://www.tandfonline.com/ujsj. Manuscript submissions are processed solely online through the ScholarOne system, and the direct link to submit a manuscript is http:// mc.manuscriptcentral.com/ujsj. Leading off our first issue of 2021, Taylor Kidd (University of California, Irvine) explores “Implicit and Explicit Attitudes Toward Prosecutors and Defense Attorneys.” Kidd investigates how potential jurors view both prosecutors and defense attorneys, two integral players in the criminal justice system, and then how those views may influence trial decisions. Importantly, Kidd distinguishes between explicit and implicit biases and finds both matter. Most notably, Kidd finds that implicit biases are most consequential in cases where the evidence is most ambiguous and so underlying attitudes have more opportunity to emerge. The other three research articles in this issue leave the bounds of the U.S. to examine courts in other countries. We begin our overseas exploration with Benjamin Bricker’s (Southern Illinois University) piece on “Consensus Decision Making: A Comparative Analysis of Judging and Judicial Deliberations.” Bricker conducts a comparative study of European courts to understand how judges reach consensus in different forums. Through both interviews with judges and clerks, as well as an analysis of an original dataset of European constitutional court decisions, Bricker finds that case complexity significantly influences the likelihood of consensus outcomes. We next move to an examination of Brazilian courts in “Adjudication Forums, Specialization, and Case Duration: Evidence from Brazilian Federal Courts,” by Caio Castelliano (University of Brasilia), Peter Grajzl (Washington and Lee University), Andre Alves (Office of the Attorney General, Brazil), and Eduardo Watanabe (University of Brasilia). Using Brazil as a case study, the authors investigate how court institutional structures and processes – including forms of court specialization – can influence case durations. They find that certain forms of specialization, but not others, can lead to faster case adjudications, providing important insights for courts across the globe. In our final research article, Elisa Fusco (University of Rome La Sapienza), Martina Laurenzi (Logista Italia), and Bernardo Maggi (University of Roma La Sapienza) explore “Length of Trials in the Italian Judicial System: An Efficiency Analysis by Macro-Area.” The Italian legal system is marked by both more judges than most Europe
{"title":"Letter from the Editor -Volume 42, Issue 1","authors":"Amy Steigerwalt","doi":"10.1080/0098261x.2021.1926785","DOIUrl":"https://doi.org/10.1080/0098261x.2021.1926785","url":null,"abstract":"Welcome to the first issue of Volume 42 for the Justice System Journal. JSJ is published under an arrangement between the National Center for State Courts and Routledge (Taylor & Francis). The Journal’s commitment is to providing an outlet for innovative, social scientific research on the myriad of issues that pertain to the third branch of government. Information about JSJ, including the Journal’s Aims & Scopes as well as instructions for manuscript submissions, can be found at our website: http://www.tandfonline.com/ujsj. Manuscript submissions are processed solely online through the ScholarOne system, and the direct link to submit a manuscript is http:// mc.manuscriptcentral.com/ujsj. Leading off our first issue of 2021, Taylor Kidd (University of California, Irvine) explores “Implicit and Explicit Attitudes Toward Prosecutors and Defense Attorneys.” Kidd investigates how potential jurors view both prosecutors and defense attorneys, two integral players in the criminal justice system, and then how those views may influence trial decisions. Importantly, Kidd distinguishes between explicit and implicit biases and finds both matter. Most notably, Kidd finds that implicit biases are most consequential in cases where the evidence is most ambiguous and so underlying attitudes have more opportunity to emerge. The other three research articles in this issue leave the bounds of the U.S. to examine courts in other countries. We begin our overseas exploration with Benjamin Bricker’s (Southern Illinois University) piece on “Consensus Decision Making: A Comparative Analysis of Judging and Judicial Deliberations.” Bricker conducts a comparative study of European courts to understand how judges reach consensus in different forums. Through both interviews with judges and clerks, as well as an analysis of an original dataset of European constitutional court decisions, Bricker finds that case complexity significantly influences the likelihood of consensus outcomes. We next move to an examination of Brazilian courts in “Adjudication Forums, Specialization, and Case Duration: Evidence from Brazilian Federal Courts,” by Caio Castelliano (University of Brasilia), Peter Grajzl (Washington and Lee University), Andre Alves (Office of the Attorney General, Brazil), and Eduardo Watanabe (University of Brasilia). Using Brazil as a case study, the authors investigate how court institutional structures and processes – including forms of court specialization – can influence case durations. They find that certain forms of specialization, but not others, can lead to faster case adjudications, providing important insights for courts across the globe. In our final research article, Elisa Fusco (University of Rome La Sapienza), Martina Laurenzi (Logista Italia), and Bernardo Maggi (University of Roma La Sapienza) explore “Length of Trials in the Italian Judicial System: An Efficiency Analysis by Macro-Area.” The Italian legal system is marked by both more judges than most Europe","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"90 1","pages":"1 - 2"},"PeriodicalIF":0.7,"publicationDate":"2021-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79982313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-07DOI: 10.1080/0098261X.2021.1926786
Gbemende E. Johnson
The dispute in U.S. Fish and Wildlife Service v. Sierra Club, [592U. S. ____ (2021)] centers on the release of government records related to an Environmental Protection Agency (EPA) rule governing cooling water intake systems. In 2014, the Sierra Club requested records from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) under the Freedom of Information Act (FOIA). The Services released some documents but withheld other requested records. The Sierra Club subsequently filed suit in the District Court of Northern California and the dispute narrowed to the release of 16 documents related to draft biological opinions developed by the Services. The key question in this case is whether the remaining records held by the Services are protected from disclosure by the deliberative process privilege under Exemption 5 of the Freedom of Information Act. The District Court initially ruled that some documents were exempt from release under the deliberative privilege, but the 2013 draft biological opinions and related documents should be released in full to the Sierra Club. On appeal, the Ninth Circuit affirmed the District Court’s decision in part, but also reversed in part and remanded the case, ruling that some of documents the District Court ordered released were in fact protected under the deliberative process privilege. However, the Ninth Circuit upheld the release of the 2013 draft biological opinions and related documents to the Sierra Club. In a 7-2 decision, the Supreme Court reversed and remanded the decision of the Ninth Circuit and ruled that the deliberative process privilege protected the 2013 draft biological opinion records from disclosure. Justice Amy Coney Barrett wrote the majority opinion, with Justice Breyer authoring a dissenting opinion joined by Justice Sotomayor.
美国鱼类和野生动物管理局诉塞拉俱乐部案的争议，[5996]。S. ____(2021)]以公布与环境保护局(EPA)管理冷却水进气系统的规定有关的政府记录为中心。2014年，塞拉俱乐部根据《信息自由法》(Freedom of Information Act, FOIA)要求美国鱼类和野生动物管理局(Fish and Wildlife Service)和国家海洋渔业局(National Marine Fisheries Service)提供记录。情报部门公布了一些文件，但保留了其他要求的记录。随后，塞拉俱乐部向北加州地方法院提起诉讼，争议缩小到与服务处起草的生物学意见草案有关的16份文件的公布。本案的关键问题是，情报部门持有的剩余记录是否受到《信息自由法》豁免条款第5项规定的审议程序特权的保护，免于披露。地方法院最初裁定，根据审议特权，一些文件可以免于公布，但2013年的生物学意见草案和相关文件应全部公布给塞拉俱乐部。在上诉中，第九巡回法院部分地维持了地方法院的判决，但也部分地推翻了原判并发回原审，裁定地方法院下令公布的一些文件实际上受到审议程序特权的保护。然而，第九巡回法院支持向塞拉俱乐部发布2013年生物学意见草案和相关文件。最高法院以7票赞成、2票反对的结果推翻了第九巡回法院的判决，并裁定审议程序特权保护了2013年的生物鉴定记录草案不被披露。大法官艾米·科尼·巴雷特(Amy Coney Barrett)撰写了多数意见，大法官布雷耶(Breyer)撰写了反对意见，索托马约尔(Sotomayor)也加入了反对意见。
{"title":"The Deliberative Process Privilege and the Freedom of Information Act: U.S. Fish and Wildlife Service v. Sierra Club (2021)","authors":"Gbemende E. Johnson","doi":"10.1080/0098261X.2021.1926786","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1926786","url":null,"abstract":"The dispute in U.S. Fish and Wildlife Service v. Sierra Club, [592U. S. ____ (2021)] centers on the release of government records related to an Environmental Protection Agency (EPA) rule governing cooling water intake systems. In 2014, the Sierra Club requested records from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) under the Freedom of Information Act (FOIA). The Services released some documents but withheld other requested records. The Sierra Club subsequently filed suit in the District Court of Northern California and the dispute narrowed to the release of 16 documents related to draft biological opinions developed by the Services. The key question in this case is whether the remaining records held by the Services are protected from disclosure by the deliberative process privilege under Exemption 5 of the Freedom of Information Act. The District Court initially ruled that some documents were exempt from release under the deliberative privilege, but the 2013 draft biological opinions and related documents should be released in full to the Sierra Club. On appeal, the Ninth Circuit affirmed the District Court’s decision in part, but also reversed in part and remanded the case, ruling that some of documents the District Court ordered released were in fact protected under the deliberative process privilege. However, the Ninth Circuit upheld the release of the 2013 draft biological opinions and related documents to the Sierra Club. In a 7-2 decision, the Supreme Court reversed and remanded the decision of the Ninth Circuit and ruled that the deliberative process privilege protected the 2013 draft biological opinion records from disclosure. Justice Amy Coney Barrett wrote the majority opinion, with Justice Breyer authoring a dissenting opinion joined by Justice Sotomayor.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"34 1","pages":"106 - 109"},"PeriodicalIF":0.7,"publicationDate":"2021-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83940774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-16DOI: 10.1080/0098261X.2021.1934614
C. Shang, Lamine Balde
Abstract This article aims to take stock of where we are, how we got here, and where we are heading with regard to lex mercatoria in Chinese commercial dispute resolution proceedings. Based on qualitative evidence and supplemented by quantitative data, we found that lex mercatoria is hardly used in China, both in the adjudicative and arbitrative decision-making process. We examine multiple potential explanations and argue that state-embedded adjudicative structures as well as Chinese cultural inclinations and philosophic learnings limit the application of lex mercatoria in Chinese dispute resolution settings. We do acknowledge that the characteristics of lex mercatoria itself prevent or discourage its application. However, we conjecture that philosophical, political, and socio-economic ideology and movement shape disputing parties’ preferences. In the past decade, China’s rising new economic organizations such as Free Trade Zones and Belt and Road Initiative influenced the development of new commercial customs and norms, offering a fertile ground for the emergence of a lex mercatoria with Chinese characteristics.
{"title":"Searching for China’s Lex Mercatoria through Commercial Dispute Resolution","authors":"C. Shang, Lamine Balde","doi":"10.1080/0098261X.2021.1934614","DOIUrl":"https://doi.org/10.1080/0098261X.2021.1934614","url":null,"abstract":"Abstract This article aims to take stock of where we are, how we got here, and where we are heading with regard to lex mercatoria in Chinese commercial dispute resolution proceedings. Based on qualitative evidence and supplemented by quantitative data, we found that lex mercatoria is hardly used in China, both in the adjudicative and arbitrative decision-making process. We examine multiple potential explanations and argue that state-embedded adjudicative structures as well as Chinese cultural inclinations and philosophic learnings limit the application of lex mercatoria in Chinese dispute resolution settings. We do acknowledge that the characteristics of lex mercatoria itself prevent or discourage its application. However, we conjecture that philosophical, political, and socio-economic ideology and movement shape disputing parties’ preferences. In the past decade, China’s rising new economic organizations such as Free Trade Zones and Belt and Road Initiative influenced the development of new commercial customs and norms, offering a fertile ground for the emergence of a lex mercatoria with Chinese characteristics.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":"19 1","pages":"205 - 221"},"PeriodicalIF":0.7,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75700822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-24DOI: 10.1080/0098261X.2021.1927266
Laura P. Moyer
Abstract While much of the work on amicus briefs focuses on whether such briefs affect Supreme Court outcomes or doctrine, much less is known about the content of these briefs, particularly how groups opt to frame issues as part of their litigation strategy. In this study, I leverage an approach to content analysis that has previously been used to analyze judicial opinions and use it to assess the frames used by amicus groups in a single policy area over four decades. Using an original dataset of amicus briefs filed in Supreme Court cases on the right to abortion, I test the claim from the social movement literature that antiabortion groups have adopted the language of science in the post-Roe era. However, I find only limited support for such a shift, suggesting that litigation strategies may not track framing approaches used in other venues. Among antiabortion amici, only health organizations rely upon science framing, partially neutralizing the monopoly that prochoice health organizations had established with respect to scientific claims. By comparison, prochoice groups generally employ more science framing in their briefs than prolife groups and show evidence of calibrating this frame in response to changes in doctrine and court composition. Beyond its contributions to illuminating the movement-countermovement dynamics in abortion litigation, this study offers an approach that could be easily adapted to the study of other policy areas, contributes to the literature on social movements and framing, and advances our understanding of how organized interests assert themselves through the amicus curiae brief.
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