Home About us Contact
|
Home About us Contact | ||
|
|
||
Legal Rules (legal + rule)
Selected AbstractsThe Statistical Analysis of Judicial Decisions and Legal Rules with Classification TreesJOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 2 2010Jonathan 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] The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias KummEUROPEAN LAW JOURNAL, Issue 2 2006Theodor Schilling This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS,its principles,may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law. [source] Complementary and integrative medical therapies, the FDA, and the NIH: definitions and regulationDERMATOLOGIC THERAPY, Issue 2 2003Michael H. Cohen ABSTRACT: ,,The National Center for Complementary and Alternative Medicine (NCCAM) presently defines complementary and alternative medicine (CAM) as covering "a broad range of healing philosophies (schools of thought), approaches, and therapies that mainstream Western (conventional) medicine does not commonly use, accept, study, understand, or make available. The research landscape, including NCCAM-funded research, is continually changing and subject to vigorous methodologic and interpretive debates. Part of the impetus for greater research dollars in this arena has been increasing consumer reliance on CAM to dramatically expand. State (not federal) law controls much of CAM practice. However, a significant federal role exists in the regulation of dietary supplements. The U.S. Food and Drug Administration (FDA) regulates foods, drugs, and cosmetics in interstate commerce. No new "drug" may be introduced into interstate commerce unless proven "safe" and "effective" for its intended use, as determined by FDA regulations. "Foods", however, are subject to different regulatory requirements, and need not go through trials proving safety and efficacy. The growing phenomenon of consumer use of vitamins, minerals, herbs, and other "dietary supplements" challenged the historical divide between drugs and foods. The federal Dietary Supplements Health Education Act (DSHEA) allows manufacturers to distribute dietary supplements without having to prove safety and efficacy, so long as the manufacturers make no claims linking the supplements to a specific disease. State law regulates the use of CAM therapies through a variety of legal rules. Of these, several major areas of concern for clinicians are professional licensure, scope of practice, and malpractice. Regarding licensure, each state has enacted medical licensing that prohibits the unlicensed practice of medicine and thereby criminalizes activity by unlicensed CAM providers who offer health care services to patients. Malpractice is defined as unskillful practice which fails to conform to a standard of care in the profession and results in injury. The definition is no different in CAM than in general medicine; its application to CAM, however, raises novel questions. Courts rely on medical consensus regarding the appropriateness of a given therapy. A framework for assessing potential liability risk involves assessing the medical evidence concerning safety and efficacy, and then aligning clinical decisions with liability concerns. Ultimately research will or will not establish a specific CAM therapy as an important part of the standard of care for the condition in question. Legal rules governing CAM providers and practices are, in many cases, new and evolving. Further, laws vary by state and their application depends on the specific clinical scenario in question. New research is constantly emerging, as are federal and state legislative developments and judicial opinions resulting from litigation. [source] Accountability, Control and Independence: The Case of European AgenciesEUROPEAN LAW JOURNAL, Issue 5 2009Madalina Busuioc This article points at two problematic assumptions made in some of the contemporary European agency literature. It proposes a conceptual framework, integrating accountability, autonomy and control, and aims to demonstrate how this type of conceptualisation contributes to clarifying problematic aspects of the current European agency debate. Empirical evidence from interviews with high-level practitioners is provided to illustrate the relevance of the proposed framework. The empirical information reveals that, at times, the de facto level of autonomy displayed by some European agencies is below the autonomy provided by the formal legal rules as a result of ongoing controls exercised by one (or other) of the principals. The repercussions that flow from these empirical insights for the agency debate in general, as well as for our understanding of agency accountability, will be discussed at length. [source] The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias KummEUROPEAN LAW JOURNAL, Issue 2 2006Theodor Schilling This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS,its principles,may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law. [source] The Statistical Analysis of Judicial Decisions and Legal Rules with Classification TreesJOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 2 2010Jonathan 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] Rational Choice and Developmental Influences on Recidivism Among Adolescent Felony OffendersJOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 4 2007Jeffrey Fagan Recent case law and social science both have claimed that the developmental limitations of adolescents affect their capacity for control and decision making with respect to crime, diminishing their culpability and reducing their exposure to punishment. Social science has focused on two concurrent adolescent developmental influences: the internalization of legal rules and norms that regulate social and antisocial behaviors, and the development of rationality to frame behavioral choices and decisions. The interaction of these two developmental processes, and the identification of one domain of socialization and development as the primary source of motivation or restraint in adolescence, is the focus of this article. Accordingly, we combine rational choice and legal socialization frameworks into an integrated, developmental model of criminality. We test this framework in a large sample of adolescent felony offenders who have been interviewed at six-month intervals for two years. Using hierarchical and growth curve models, we show that both legal socialization and rational choice factors influence patterns of criminal offending over time. When punishment risks and costs are salient, crime rates are lower over time. We show that procedural justice is a significant antecedent of legal socialization, but not of rational choice. We also show that both mental health and developmental maturity moderate the effects of perceived crime risks and costs on criminal offending. [source] Born unto Brothels,Toward a Legal Ethnography of Sex Work in an Indian Red-Light AreaLAW & SOCIAL INQUIRY, Issue 3 2008Prabha Kotiswaran The global sex panic around sex work and trafficking has fostered prostitution law reform worldwide. While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex workers. I problematize both narratives by delineating the political economy and legal ethnography of Sonagachi, one of India's largest red-light areas. I show how within Sonagachi there exist highly internally differentiated groups of stakeholders, including sex workers, who, variously endowed by a plural rule network,consisting of formal legal rules, informal social norms, and market structures,routinely enter into bargains in the shadow of the criminal law whose outcomes cannot be determined a priori. I highlight the complex relationship between criminal law and sex markets by analyzing the distributional effects of criminalizing customers on Sonagachi's sex industry. [source] Monetary remedies in public law , misdiagnosis and misprescriptionLEGAL STUDIES, Issue 1 2006Roderick Bagshaw This paper argues that the Law Commission's discussion paper Monetary Remedies in Public Law was vitiated by three flaws prevalent in the critical literature that it surveyed. The first, and most significant, flaw is a tendency to proceed by dislocating legal rules from their context then comparing them as abstract verbal formulae. This is made apparent through a comparison between unreasonableness in the tort of negligence and Wednesbury unreasonableness. The second flaw is the presentation of evaluative conclusions without a sufficient defence of the criteria used to reach them. The third flaw is the adoption of an unhelpfully static perspective as to the purpose of public-law liability rules, which neglects the positive role that they play in structuring good public decision making. The paper concludes by providing a sketch for the design of a research project which transcends these flaws. [source] Deduction and Justification in the Law.RATIO JURIS, Issue 2 2004Concepts, The Role of Legal Terms The paper distinguishes two problems regarding this use. One is the logical function of terms for deduction within a normative system. Specific problems dealt with in this connection are meaning, definition, and economy of expression. The other problem connected with middle terms is the "moulding" and possible manipulation of the meaning of legal terms, for arriving at desired conclusions in a given scheme of inference. It is indicated how the moulding of contested legal concepts, if not restricted, will obscure the ratio of legal rules. This problem is relevant, inter alia, to arguments ex analogia in the law. [source] Holmes, Langdell and FormalismRATIO JURIS, Issue 1 2002Patrick 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] The Challenges of Ambient Law and Legal Protection in the Profiling EraTHE MODERN LAW REVIEW, Issue 3 2010Mireille Hildebrandt Ambient Intelligence is a vision of a future in which autonomic smart environments take an unprecedented number of decisions both for the private and the public good. It involves a shift to automated pattern recognition, a new paradigm in the construction of knowledge. This will fundamentally affect our lives, increasing specific types of errors, loss of autonomy and privacy, unfair discrimination and stigmatisation, and an absence of due process. Current law's articulation in the technology of the printed script is inadequate in the face of the new type of knowledge generation. A possible solution is to articulate legal protections within the socio-technical infrastructure. In particular, both privacy-enhancing and transparency-enhancing technologies must be developed that embed legal rules in ambient technologies themselves. This vision of ,Ambient Law' requires a novel approach to law making which addresses the challenges of technology, legitimacy, and political-legal theory. Only a constructive and collaborative effort to migrate law from books to other technologies can ensure that Ambient Law becomes reality, safeguarding the fundamental values underlying privacy, identity, and democracy in tomorrow's ambient intelligent world. [source] | ||||||||||