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Legal Doctrine (legal + doctrine)

Distribution by Scientific Domains

Law and Criminology	90%

Selected Abstracts

The Statistical Analysis of Judicial Decisions and Legal Rules with Classification Trees

JOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 2 2010
Jonathan P. Kastellec
A key question in the quantitative study of legal rules and judicial decision making is the structure of the relationship between case facts and case outcomes. Legal doctrine and legal rules are general attempts to define this relationship. This article summarizes and utilizes a statistical method relatively unexplored in political science and legal scholarship,classification trees,that offers a flexible way to study legal doctrine. I argue that this method, while not replacing traditional statistical tools for studying judicial decisions, can better capture many aspects of the relationship between case facts and case outcomes. To illustrate the method's advantages, I conduct classification tree analyses of search and seizure cases decided by the U.S. Supreme Court and confession cases decided by the courts of appeals. These analyses illustrate the ability of classification trees to increase our understanding of legal rules and legal doctrine. [source]

UNITED STATES V. BOOKER AS A NATURAL EXPERIMENT: USING EMPIRICAL RESEARCH TO INFORM THE FEDERAL SENTENCING POLICY DEBATE,

CRIMINOLOGY AND PUBLIC POLICY, Issue 3 2007
PAUL J. HOFER
Research Summary: In United States v. Booker, the U.S. Supreme Court held that the federal sentencing guidelines must be considered advisory, rather than mandatory, if they are to remain constitutional under the Sixth Amendment. Since the decision, the U.S. Sentencing Commission has provided policy makers with accurate and current data on changes and continuity in federal sentencing practices. Unlike previous changes in legal doctrine, Booker immediately increased the rates of upward and downward departures from the guideline range. Government-sponsored downward departures remain the leading category of outside,the-range sentences. The rate of within-range sentences, although lower than in the period immediately preceding Booker, remains near rates observed earlier in the guidelines era. Despite the increase in departures, average sentence lengths for the overall caseload remain stable, because of offsetting increases in the seriousness of the crimes being sentenced and in the severity of penalties for those crimes. Analyses of the reasons that judges reported for downward departures suggest that treatment of criminal history and offender characteristics are the two leading areas of dissatisfaction with the guidelines. Policy Implications: Assessment of changes in sentencing practices following Booker by different observers depends partly on competing institutional perspectives and on different degrees of trust in the judgment of judges, prosecutors, the Sentencing Commission, and Congress. No agreement on whether Booker has bettered or worsened the system can be achieved until agreement exists on priorities among the purposes of sentencing and the goals of sentencing reform. Both this lack of agreement and an absence of needed data make consensus on Booker's effects on important sentencing goals, such as reduction of unwarranted disparity, unlikely in the near future. Similarly, lack of baseline data before Booker on the effectiveness of federal sentencing at crime control makes before-after comparisons impossible. Despite these limitations, research provides a sounder framework for policy making than do anecdotes or speculation and sets valuable empirical parameters for the federal sentencing policy debate. [source]

ACCESS TO ESSENTIAL MEDICINES: A HOBBESIAN SOCIAL CONTRACT APPROACH

DEVELOPING WORLD BIOETHICS, Issue 2 2005
RICHARD E. ASHCROFT
ABSTRACT Medicines that are vital for the saving and preserving of life in conditions of public health emergency or endemic serious disease are known as essential medicines. In many developing world settings such medicines may be unavailable, or unaffordably expensive for the majority of those in need of them. Furthermore, for many serious diseases (such as HIV/AIDS and tuberculosis) these essential medicines are protected by patents that permit the patent-holder to operate a monopoly on their manufacture and supply, and to price these medicines well above marginal cost. Recent international legal doctrine has placed great stress on the need to globalise intellectual property rights protections, and on the rights of intellectual property rights holders to have their property rights enforced. Although international intellectual property rights law does permit compulsory licensing of protected inventions in the interests of public health, the use of this right by sovereign states has proved highly controversial. In this paper I give an argument in support of states' sovereign right to expropriate private intellectual property in conditions of public health emergency. This argument turns on a social contract argument for the legitimacy of states. The argument shows, further, that under some circumstances states are not merely permitted compulsory to license inventions, but are actually obliged to do so, on pain of failure of their legitimacy as sovereign states. The argument draws freely on a loose interpretation of Thomas Hobbes's arguments in his Leviathan, and on an analogy between his state of War and the situation of public health disasters. [source]

Union Citizenship,Metaphor or Source of Rights?

EUROPEAN LAW JOURNAL, Issue 1 2001
Norbert Reich
After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting ,quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing ,implied duties' based on a doctrine of ,abus de droit' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law. [source]

The Statistical Analysis of Judicial Decisions and Legal Rules with Classification Trees

Doing Wrong Without Creating Harm

JOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 1 2010
John M. Darley
We investigate lay intuitions about the appropriate compensatory and retributive consequences of a wrongdoer putting another in harm's way when harm either does or does not result. Compensation tracked whether the harm actually occurred, though when harm has not yet occurred but might, participants prefer an escrow-like solution in which money will be available to the victim only if the risk matures into actual harm. Retributive sanctions (punitive damages, fines, prison terms) were largely unaffected by whether the harm materialized but were instead sensitive to whether the wrongdoer exhibited negligent or reckless conduct. Thus, subjects clearly differentiated between the retributive nature of punitive sanctions and the compensatory nature of restorative damages. Finally, subjects often assigned liability to the actor even when the risk-causing actions were not negligent,and in this way preferred a strict liability stance more than does the current legal doctrine. [source]

Do "Off-Site" Adult Businesses Have Secondary Effects?

LAW & POLICY, Issue 2 2009
Empirical Evidence, Legal Doctrine, Social Theory
Recent federal court decisions appear to limit the ability of cities to mitigate the ambient crime risks associated with adult entertainment businesses. In one instance, a court has assumed that criminological theories do not apply to "off-site" adult businesses. After developing the legal doctrine of secondary effects, we demonstrate that the prevailing criminological theory applies to all adult business models. To corroborate the theory, we report the results of a before/after quasi-experiment for an off-site adult business. When an off-site adult business opens, ambient crime risk doubles compared to a control area. As theory predicts, moreover, ambient victimization risk is most acute in night-time hours. The theoretical development and empirical results have obvious implications for the evolving legal doctrine of secondary effects. [source]

The elderly and undue influence inter vivos

LEGAL STUDIES, Issue 2 2003
Fiona R Burns
An important demographic and social trend is becoming indisputably evident in the UK. The population is ageing, and a clearly discernible group of elderly persons is growing. As this trend continues, it will be necessary to reconsider the effectiveness and application of the law from the perspective of the elderly claimant. While it has been recognised that there must be a legal scheme to oversee the care and protection of persons, including elders, who are unable to care for their interests due to severe disability, it is becoming evident that even elders who are apparently healthy and able may be vulnerable. Undue influence inter vivos is a significant legal doctrine upon which elderly people have relied in recent times to set aside gifs, contracts and guarantees which they (or their representatives) have considered in hindsight were not in their best interests. This paper seeks to provide an analysis of and contribute to an understanding of the doctrine of undue influence from the perspective of the elderly claimant in the UK. The paper considers actual and presumed undue influence and the impact of the House of Lords decision in Royal Bank of Scotland plc v Etridge (No2). It will be argued that the law of undue influence inter vivos is in transition from a nineteenth-century doctrine which did not confer a special legal status on the elderly to one which is applied in the context of an increasing recognition that the events leading up to the transaction and the circumstances of the case may indicate that elders need the relief which the doctrine affords. Nevertheless, the transition to a modem system of undue influence for the elderly is incomplete. There remain outstanding issues which need consideration before it can be said that there is a comprehensive or logically coherent approach to elders and undue influence. [source]

Holmes, Langdell and Formalism

RATIO JURIS, Issue 1 2002
Patrick J. Kelley
Both Holmes and Langdell believed that science was the model for all human inquiry and the source of all human progress. Langdell was influenced by an unsophisticated scientism, which led him to attempt to identify the true meaning of legal doctrines. Holmes was influenced by the sophisticated positivism of John Stuart Mill, which led him to attempt to reduce legal rules and doctrines to scientific laws of antecedence and consequence, justified only by their social consequences. Both Holmes and Langdell concluded that judges ought to decide a case by applying the rules established by precedent, without appeal to any special claims of justice and without appeal to any higher-order normative principle. [source]