Hawkins. Legal Processes. Oxford 2009.

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Contents

Class 1: Introduction

Hawkins

Legal Processes

self evident? common sense? are most people arrested convicted? no, it’s between 2 and 3 percent in the UK.

very little evidence for deterrent thoery of punishment—we know people are deterred, but we don’t know under what circs they’re deterred from what circumstances and from what acts.

24 classes. i’ll teach first four. and then it’s over to you.

1 student leads, the second comments critically on what the first student has said. you can be critical of hawkins’ writing as well.

damn i hate participation grades. it just causes people seeking participation credit to yammer on.

you don’t need to obsess over the reading. read from beginning to end, get some general ideas out of it, have a nice day.

almost the whole law as last resort book is used.

exams!

closed book exam. three hours. four essays. choice of questions, probably eight questions. debate the issues, weigh up the evidence, come to some sourt of conclusion.

  • critical analysis
  • independence of thought, analyze question closely, use evidence to show familiarity with the materials, ability to weigh up the issues

court visits!

oxford crown court and oxford magistrate court.

January 7: Class 1

the big question

what conditions cause regulatory agencies to use the law, pursue alternative resolution, or ignore violations altogether? what reality are the rules translated into?

also think about resolution between private contracting parties. immigration officials. police.

there’s maybe an overfocus on criminal law because that’s where all the research is—but there’s a lot in common between tort bargaining and criminal plea bargaining.

don’t get the impression that legal rules aren’t important

sometimes they’re very unimportant.

what reality are the rules translated into?

the rule of law

equal under the law, freedom under the law, etc. to what extent does the reality of the law match up to the rhetoric of the rule of law?

we had a civil war and a republic between 1650 and 1660 when we got upset about whether there was a divine right to rule. but we went back to a symbolic monarchy.

important idea that you’re subject to the laws you make in liberal democracies—so how close is it? what if a police officer turns a blind eye? are they dispensing justice without trial?

anarchy: without order

lots of real property law works very smoothly. but that isn’t always the case with other types of law.

question: why isn’t sociology of law required in american law schools? not as handy in succeeding in practice, or at least, isn’t viewed that way. and the teachers in american schools want to graduate competent practicing attorneys. secondary question: think at the end of the course whether you’re better off as a lawyer with this course, or whether you already got this information as part of your liberal arts education.

Class 2: January 8

common law system, that ole import from england.

in this country, justice was dispensed by the monarch; justice was a royal function, and he sent justices out to his realm to dispense justice. that’s why they sit on the bench under a symbol of state authority. the king’s justices dispensed justice in london, as well as the rest of the country, and they would get on horses, riding around, and that’s where the idea of a judge on circuit comes from. and you still have circuits today, which goes all the way back to the 12th century in this country (england).

all of the english judges are appointed. they’re not elected like they often are in the US.

french or german civil system: judge’s role is to apply the law found in the articles in various codes—in practice, the systems are very similar. when a judge sees an inconvenient precedent, the judge may cleverly reason around the precedent to get to the outcome he or she wants to arrive at. and in civil law, there’s a tendency to follow earlier decisions because it’s efficient, even though they’re supposed to just be applying the code.

in english law we’ve gotten rid of almost all juries, except a few things, 5% of criminal cases, defamation… there are three types of seriousness for criminal cases. we got rid of the felony/misdemeanor distinction that you all still observe. instead they’re now organized into summary offenses, indictable offenses, and the ones that can be tried either way. summary offenses are relatively trivial. minor thefts, vehicular offenses; regarded as insufficiently serious to have anyone beside three lay justices (the magistrates) who dispense summary justice.

however, the serious cases, the murder, rape, robbery, serious assault, arson, kinds of case, are indicted before a jury in a crown court. that’s where you’ll see all the serious cases. those cases must be tried before a jury. but only about 5% of cases fall into this category.

in the interest of money, speed, and conviction rates, the governments have been moving away from the jury.

the dual offenses allow either side to invoke a jury trial. not a simple decision. there’s a greater chance of being acquitted by a jury in crown court, but the risk is that when they go to trial before crown court, they’ll be punished much more heavily. the summary court can’t imprison someone for more than 6 months. the crown court can hit someone with up to life in prison in the crown court. it also takes months to get a case into crown court, and there’s more publicity around a crown court case.

what we don’t have here, aside from the elected judges, is the office of the district attorney, which is frequently a person with political ambitions. we have a crown prosecution ____ set up to be independent from the police. although in theory they’re independent from the police, they’re heavily dependent on the police, for reasons we’ll see later.

the idea of discretion is pretty limited, so let’s talk about

legal decisionmaking

there’s a difference between legal decisionmaking and discretion. in the first set of readings i argue that discretion is important and inevitable in practice. modern legal systems rely increasingly on grants of authority to others to get things done. delegated authority. when the government created OSHA and the EPA, there were huge amounts of legal authority granted to them.

you’ll see references to health and safety at work act, section 2, which created the health and safety executive (much like the American OSHA) and the rules to enforce to protect people against ill health in the workplace. so HSE had a great deal of discretion.

  • legislatures do this because life is too complicated—they don’t want to be seen to be taking sides.

“Look after health and safety of people in the workplace” … “so far as is reasonably practicable.”

Why include that line, “so far as is reasonably practicable”? It allows the legislature to avoid being seen taking sides. they don’t want to come down harsh on one constituency or another.

this all has to do with creating discretion and then parceling it into less visible parts.

is there a law in the US for, “if you see a criminal act, you can do A,B,C, or D.” that’s not the way it’s done, instead it’s, “X, Y, Z is a crime.” although if someone’s story is convincing, a police officer won’t always enforce the statute.

words are not self evident. they are inherently ambiguous. if it’s in your client’s interst to argue that an aircraft is not a vehicle, you’ll argue it.

one will in the UK depended on disjunctive or conjunctive meaning of or. “this is a table or a piece of furniture.” “the light is on or off.”

stand with back to old saul’s college and face university college. and look at one of the gatehouses, and you’ll see a female figure carved in stone raising a clenched fist. but what does that mean? gender expectations of what the gesture means.

there are 2000 new industrial chemicals invented every year. it makes sense for legislatures to regulate these problems by reference to expert discretion. the legislative task is getting larger each year.

social scientists have a different conception of discretion…

does the name ronald dworkin mean anything to you?

he is an american. probably the most distinguished jurisprudence person. unlike american universities, english ones require you to retire at a certain age. 40 years ago, wrote about discretion in a law review, and said in jurisprudential terms you can think about discretion in three ways, two forms of weak discretion and one strong discretion. (hawkins: i find these labels unhelpful). first form of weak: when a person has a choice to make even though there may be standards to exercise in that choice. e.g. the sergeant who’s taking his five most experienced men on patrol. the sergeant is to choose five, but the constraining element is experience. the second form of weak discretion, which is where the decisionmaker has final, unreviewable authority. why he calls that weak is for him to decide. he gives the third base empire who decides whether the runner is in or out, and it’s unreviewable. why he calls that weak, who knows. even though television replays may show that he got it wrong, nonetheless the decision is unreviewable. the third form of discretion, strong discretion, is where the decision maker is not bound by any standards. the example of strong discretion is when the sergeant is supposed to take any five men on patrol (but he still has to take five, and they have to be men).

  • so the line drawn between strong and reach discretion is only a relative one. the discretion can only be stronger or weaker, it can’t fall absolutely into strong or weak.

goodin

we can think of discretion as formally allocated, where the choices are written explicitly into the rule. or the directives might be implicit. but this has the same relativity problem of dworkin’s distinction.

then there’s provisional discretion, where discretion may be reviewed, or ultimate, where the discretion is final. in the US Supreme Court, they exercise ultimate discretion, unless it’s the dormant commerce clause, or a state law issue (of course, SCOTUS is the one that decides that). (and don’t forget that you can stock the court with different judges. so nothing is decided forever.)

In england, the legislature is supreme

what’s so scary about discretion?

no predictability, consistency (or too much uniformity among disparate circumstances). social values change over time, so we want the law to have room, so it won’t atrophy.

worry that we’re at the mercy of individual whim.

that law becomes capricious or arbitrary.

pejorative terms of “strict constructionist” and “liberals”.

remember to pay bills. check requirements for presentation of paper topic.

friday 20th of february: court date? has to be provisional. magistrate court usually isn't a problem, but crown court doesn't predict its calendar until about 24 hours in advance.

schedule for class presentations coming soon. probably tomorrow.

January 14: class 3 notes

discretion an absolutely key process in legal processes.

problems with discretion

for some lawyers, discretion only exists as a consequence of the structure of legal rules. controversy among lawyers about discretion. some lawyers don't like the inconsistency of outcome, it appears arbitrary, capricious. when lawyers complain that something is arbitrary, they're complaining that something with no rational connection to a decision impacts the decision. example: police officer sets out to arrest people with red hair. this can't be a rational connection unless people with red hair were more crime prone than people with other hair colors. so that decision is irrational or arbitrary. so lawyers are very suspicious of discretion.

another source of controversy: discretion seems like a source of abuse. the police officer on the street exercising discretion over whether or not to arrest/pursue is exercising power. lawyers schooled in the rule of law are schooled in rational, orderly, accountable power, not power exercised on a whim.

the procedures are open to abuse. when lawyers think about decision making procedures, they think about the full panoply of legal procedures. where everything is transparent and above board, so there's no question about the propriety of decision making. but none of that happens when discretion is exercised. a judge will hear a full adversarial proceeding, but a police officer will have to make a choice in a few minutes, an hour, and it raises an opportunity for all sorts of abuse to arise.

i did my phd in the 60's at cambridge on american parole systems. sing sing prison in new york. parole hearing at 8:30 in the morning, finishing at 4:00 in the afternoon, thirty minute lunch break. over 120 prisoners passed through the hearing room--some to be considered as parole violators, rest to be considered for release. each case only had a very very short period of time. parole revocation hearing: your name is john smith? yes. looks like you turned up for your parole supervision drunk with needle marks in your arms--what were you doing? doesn't look like due process. so lawyers are very suspicious.

advantages of discretion?

used to be taken for granted as a desirable thing.

more efficient; unless you expand the parole board. think of the INS board dealing with 900 grumpy people getting off their flights, and each person has to be scrutinized. clearly, you've got to deal with these people pretty quickly or you'll have a riot on your hands. you can still set up extremely efficient rational systems: if you see A, B, and C, then do X.

there are too many individual characteristics to not have discretion? every case is unique. the greatest argument for discretion is that it offers flexibility to the individual realities of each case. yet, for the sake of efficiency, decision makers have to treat cases as the-same in order to deal with cases in a rational, efficient way.

california pizza case: california has a three strikes sentencing system. one of the rules is that if a person is convicted of a third felony, that person must be sentenced to a minimum of 25 years to life in prison. the defendant was convicted of stealing a slice of pizza. theft is a felony in california. and he's currently doing 25 to life.

my argument: perhaps you only get caught 1% of the time, and pizza theft is representative of worse behavior.

from 1750 to the early 1800's there were over 200 crimes with the death penalty. but there were fewer than 1000 executions even in the worst times, because juries refused to convict.

three strikes rules in over 40 states--noticeable situation where discretion has an apparently benevolent influence.

maybe the pizza thief is a really bad guy, and the pizza was the first chance to lock him up. the al capone argument: we can't nail him for this, so we'll get him for tax evasion. maybe the citizens of orange county thought this guy had it coming to him.

lexia: the prosecutor also exercised discretion. they had discretion not to act, not to enforce the law. so there was still an opportunity for the softening effect of discretion.

fifty years ago, discretion wasn't looked at critically. you can see the decisions of the warren supreme court, e.g. miranda.

kenneth culp (spelling)? used to be quite famous. wrote scathing description of discretion.

is lawyers' view too limited?

two opposing forces: those who dislike discretion, primarily backed by lawyers, but society expects discretion and response to social and political values.

we (british people) appoint judges because the underlying constitutional idea is independence--fear that making them directly elected exposes them to sudden changes in feelings. the british prime minister can only appoint elected members of parliament--everyone in gordon brown's parliament with one exception is an elected MP.

an important difference between the two political systems.

kate: political and social office in a lot of ways (which view of discretion is too narrow?)

why can you argue that lawyers have a limited view of discretion?

harsh penalties only there to give room for plea barganing?

legal processes with an S

gotta take the holistic view: there are a whole series of decisions that have to be made, between a person doing an untward act that might be definable as a crime, that might be caught, that might be reported, police, might be prosecuted, victim might choose not to prosecute, all the way down the line. different actors in different institutional systems.

you would get a different account of discretion from a police officer and a parole board member.

police embroiled in crime control values, not due process values.

so the atomistic, invidual perception is incorrect, in my view.

another quarrel: the dworkin-esque obsession with rules, that people operate in a rule structure. sometimes they do, sometimes they don't.

if you find your police officers are prejudicial against racial or ethnic minorities, it may be that teh remedy won't be most effective to increase police accountability, the remedy might be a norm legal remedy--better training, better selection of police officers.

the focus on legal rules inevitably tends to make lawyers think of courts and adjudication. you will always think in those terms because you'll be schooled to think in those terms.

two propositions: courts are unimportant places in the legal system. OR courts are very important places in the legal system. which of those is true?

justification for the second proposition is that the court is still the hammer that gets things done. a court date settles more cases than anything else.

hawkins: courts are important places, particularly when they have law making power. i dont want to give you the impression that courts are not important.

but they could also be unimportant depending on your perspective. for the great mass of legal action, where only 2%-3% of crimes known to the police end up in court conviction. there are some trivial matters that end up in court, and serious matters that dont. i'll give you an example involving a college in this university.

someone discovered a wealthy benefactor who gave the college a 2-3 million dollar benefaction, 20 years ago, which was a lot of money at the time. the benefactor, 2 or 3 years later ,was charged with fraud. his case was investigated very thorougly. the director of public prosecutions concluded that the man had defrauded institutions to the tune of 20-30 million pounds. negotiations took place. and a deal was done. and after a low profile legal action the offender was sentenced to 100 hours of community service. i think we can reliably expect he had been involved in fraudulent behavior with more than 20 million pounds. discretion prevented the full guns of the law from being used.

so not a clear alignment of only serious cases going to court, and non serious cases staying out of court.

i don't want you to hear me say that adjudication and court processes are unimportant.

legal rules can be terribly important, although sometimes in a terribly perverted way. i want to get you to think in terms of legal decision making, people who exercise legal authority, maybe ins officials, irs officials, epa, osha, whatever, they all exercise a legal authority.

true story: one of my american academic colleagues doing housing coding enforcement. watching inspectors in the city of buffalo. he pulled up outside of a house. knocked on front door. inspector said is this your house, yes, there's a freezer in your yard, you're violating section 32 of the housing code. a child could walk in, close the door, and suffocate. i want the freezer gone by 3pm.

there is no section 32(c) of the housing code. is the inspector exercising discretion? there's no legal rule within which the inspector could be said to be exercising discretion. there's a legal fiction presented to the house holder to respond as if there were a law, and it had a consequence. is unauthorized discretion a contradiction in terms?

jehnisa: maybe she moved thre freezer because she thought a child could get hurt.

well let us assume that he didn't mention that point, and she just did it to avoid violation of a fictional law. although your'e quite right that people comply with the law for reasons not having to do with the law. could it still be seen as the exercise of discretion? unauthorized discretion? how could discretion exist if it's unauthorized?

discretion by the lawyer: is this case worth pursuing? that involves legal decision making. questionable whether it involves legal discretion. lawyer isn't acting under a rule authorizing her to pursue or not pursue a case, it's just how the business works.


i'll reverse the reading... schneider's rules, then go on to talk about holistic view of legal processes. 11 tomorrow.

January 15: class 4 (Sam's notes)

First person should summarize

Second person should reflect critically

Did you find anything interesting? Helpful?

The next section should see people swap roles. Give reflections, conclusions, whatever.

No more than 15 or 20 minutes in total on the material

REST OF CLASS

Offer their own reflections on what they've read or what they have heard from the presenters.

Rules

Advantages and Disadvantages

Problems encountered and distortion of legal rules in application

Comments on the general prospective in discussing the various materials - prospective in LaLR

Rules

We all use rules in human life and in social life. Not just legal rules. Legal actors use other rules from time to time that trump legal rules

Board member who wanted to release a prisoner talking to another board member who did not want to release - said "I went with you on the last one, will you go with me on this one?" This is the use of the Rule of Reciprocity. Social rule, but not a legal one. Despite the fact that the judge was supposed to use discretion in determining what was best for society in general.

Rules are general in application

Over time, over place, over person

Over time - good until further amendment or change of enactment made by legislature which means rules can satisfy broad aims and work proactively.

Sometimes we need rules to act as a means of discouraging future action - operate in advance.

Compare that with precedent- this is a rule creating system, but happens haphazardly because they operate reactively. The rule can only exist after the event has occurred.

Rules provide stability

They provide stability/reliability/predictability so long as they are enforced.

Allows people to organize themselves and their actions in the knowledge of what the law is and how the law will operate.

Because of this stability, they should foster consistency in their application (they do not always). But in theory, like cases should be treated alike.

This generic quality should suppress individual differences in opinion by those who implement the rules.

Rules are public in character

Though we may not carry a substantial knowledge of the rules in our head, they are there and available to us should we be interested.

Law is to be a communicative device.

Rules possess general principles

Contrast the general visibility of rules with the hidden rationals of decisions by judges or other legal actors.

We can never get inside another person's head

Rules confer legitimacy on decisions

A rulemaker who basis a ruling on a specific rules provides legitimacy for a decision.

People will frequently comply with a rule as legitimate, even if they disagree with the rule.

Margaret Thatcher imposed a poll tax in England - the result was a flat value tax so that a rich individual would pay no more in local tax than the poorest in England. Most objected that this was regressive but accepted it barring a major revolution within the nation - though there was rioting within the streets and courts were clogged with people refusing to pay the tax. Many however paid through gritted teeth.

Rules promote efficiency

If you have A,B,C then D is the outcome

Leads to efficient and clear rulings- usually swift and often unproblematic

When this kind of decision arises we do not need courts or even lawyers much of the time. We can organize our behavior accordingly.

Rules promote justice

Rules which are articualted by the legislature or in the court of law express ideas that are perhaps better founded in terms of what justice is of where it is to be found.

Frequently, individual decision makers have to rule in the here and now, without great amounts of information. In contrast, legislatures have more time to think about rules, their ramifications and their costs.

Counter- there maybe loss in the legislative process caused by costs such as industrial capture. - This is evidently a very American idea and the arguments are not found that often in England because of the political arrangements herein.

Legal and regulatory idea in England argues that interest groups and the political system with negotiate out issues, while the American system is designed to be more adversarial.

Two Paradoxes in Legal Rules

Discretion is inevitable (loose definition of discretion) and lawyers who are concerned about the exercise of human choice like to use legal rules and legal procedures and like to guide its application through criteria, provisions for review, etc. Such concerned lawyers seek to contol the behavior of decision makers by making them more accountable.

Legal rules can be effective in doing this. However, legal rules are inherently ambiguous. There is a limit to how clear a rule can be, which means that discretion will be needed, as will flexibility in applying the rules. You may often find the rules as a reference point from which discretion may be exercised - environmental regulations on pollution coming into a river may be well defined, but regulators use them as a basis for informing their discretion - only an egregious departure that leads to legal activity

Sometimes discretion is used to determine the purpose of a rule.

An officer who has reason to believe that an offense may be being committed while on his way to a more serious crime that he was called to. The officer will make a decision by determining what the most important use of time/resources/law

Rules can be used as resources.

Rules can be used to justify a decision or to defend an already chosen decsion. They may act as shields and as defenses after the fact.

Leads to 3 differnet rules in legal processes

  1. Working rules - employed in making decsions
  2. Inhibitory rules - constraining officials in making decsions
  3. Presentational rules - rules recruited by decsion makers to justify the decisions they have made.

Examples:

An officer is prejudiced against certain groups. Takes them down to the station, mostly to show them who is boss. That may forfoul the inhibitory rules that says you may only stop and search on the street if you have reasonable reason to believe that an offense may be committed.

How does the cop get around this? He gives a reasonable legal grounds to justify his action by stating that he was attempting to prevent a burglary.

Problems with Legal Rules

Rules are not obvious - they are murkey and have always been interpreted to receive meaning.

You cannot say you are dispasionately applying the rules, because you must establish the meaning of words, the actions of the defedenat, the purpose of the rules, and then determine the facts which may or may not make the rules relevant.

Scope and Complexity of rules

If and how the rules are enforced depends a great deal on how you write a rule and its ensuing scope and complexity

It is difficult to anticipate discretion of legal application just by how the rule is written. You cannot assume that the more precise the rule, the more likely it is to be followed.

Overly specific rules can make the law opaque to the degree that legal officers must use more, not less, discretion.

The opposite may also hold true. A rule can be so simple so that it is actually unclear as to what it stands for.

Imprecision

Overinclusive and underinclusive rules.

It is impossble to write rules for only one set of contingencies and no others.

There is a tendency to ere on the side of caution and to be overinclusive - or writing rules with such precision that actions are forgotten creating an underinclusive ruling.

If a rule is overinclusive for environmental regulations, then a country could be uncompetitive. On the other hand that a rule is so precisely framed that it misses its target may lead to harm to both the environment and the health of the nation's citizens.

Inflexibility

Generic status of rules means an inflexibility in the face of changing values, scientific realities, etc. For example, there are 2,000 new chemicals created every year. We need to be conscious of the impact of these chemicals on the environemtn, so discretion is helpful in decisions.

Rules Proliferate

The habit is to write more rules if the existing rules do not achieve their purpose. You thus inherently create confusion and conflict.

There is no end to the ingenuity of lawyers in dredging up legislation to assist their client

Unanticipated Consequences.

It is very hard to anticipate the future. (Chapter 12 of LaLR)

Think of what decision makers actually do

May be in response to legal rules, but can also be the result of other inputs

You find that there ar etwo views of decision making

  1. Based on the conception of decision makers acting rationally.

Individuals act to maximize beneficial outcomes to themselves. They make decisions which are rational to them. People will not break the law if the costs of breaking the law are too great for them. It presupposes the exercise of choice by a fully calculating and informed decision maker with a clear set of objectives

Hawkins - not necessarily very helpful. Can be good for a specific type of decsion making, but not in the legal system. People often do not have full information in the legal world.

  1. Naturalism

LaLR is written on the perspective of naturalism - trying to decide social reality as it is without cluttering of rational frameworks like rational choice. What is, not what ought to be. We may think of what ought to be by understanding why things are the way they are.

One. Although legal rules create discretion or lead to discretion being assumed, frequently people play by rules of another sort - moral, economic, social, political, etc. that have little or nothing to do with legal rules

Two. Although people exercise choice/discretion in deciding about rules, equally, you find there is clear evidence about the existence of rules in the way decisions are made.

  1. Frequently, legal decisions have to be made in a routine repetitive way - O'Hare operator dealing with hundreds of people coming into the U.S. but does not have the time to spend more than a minute or two on each case. 98% are disposed of in a routine fashion according to formulaic procedures.
  2. Use of typification - the use of normal ways of deciding. Deals in the ways in which the public defender's office does pleabargaining - does so by determining if a burglary is normal or not (breakins for opportunistic reasons, no gratuitous damages, no special circumstnaces), but non-normal involved perhaps great damage, great theft, etc. If it was a normal crime, then there was a normal outcome.
  3. Precedent - Same rule as with judges. Is what the judge wants to do going to create an unfortunate precedent for colleagues.

Surround, Field and Frame

Surround - broad scope in which decisions must be made - environment, economic, etc. IRA bombing outside of Harrod's caused officers to view parked cars differently than before the bombing occurred. - Can have broad impact

Field - Impacted by the surround. The field is created by the local economic situation, local law enforcement problem, etc. Impacts how resources are diverted, where they are diverted and how they approach problems

Frame - the decision making process a person goes through in looking at their surround and field and making a choice in how they pursue policies and make sense of all of the external forces.

January 21: class 5. (Sam's notes)

Readings -

Address the question of how legal officials and those who want to use law make decisions

The forms of legal decision making

Go on to deal with the initiation of processes of settling people's troubles that may or may not use law.

Think about

How do means of resolving people's troubles actually perform

How do people who have problems come to think about using law or not

Simon Roberts of LSE and UChicago's Palmer (anthropologist)

Shapiro is a political theorist at UC Berkley.

Rowland's presentation on making legal decisions

Shapiro states that the natural means of solving these conflicts is to bring in a third party to resolve the dispute - trouble of triads

The triad is a common practice

A central issue is consent. That the parties consent to adhere to the judgment

Go between, Mediator, Arbitrator, Judge

The amount of consent decreases as we move left to right, though there is a question as to how much consent exists even at the level of the judge.

Go Between - Can be fired immediately

Mediator - Have to listen to solutions, but not adhere

Abitrator - Can consent in advance, but adhere to decision

Judge/Adjudication - How did we consent to this process? Hard to say. Judge does depend on the parties to follow what he or she says.

Critique:

Permanent crisis of historical courts - as we move away from the triad (say a judge that holds office), you bring external issues to bear, which disrupts the purpose of the triad.

The triad breaks as the triangle begins to look more like a 2 v 1 situation

Interesting commentary is that the author seems to think the criminal negotiation aspect is not that adversarial, but that's unlikely to be true since even plea bargains are a hostile atmosphere.

When a lawyer thinks of a dispute, we think of something where someone has done wrong, and someone has suffered wrong. Lawyers think of litigation as a result

Problems

Lawyers thinking of disputes themselves does not look into why the dispute forms in the first place. (Naming, blaming, and claiming issue)

Article argues that there are numerous social, character and economic issues that contribute to making that decision - Say the move to improve equal access to the courts. This is fine, but the equality comes late in the game when we're in court, not when the disputes themselves arise.

Lawyers think of dispute resolution in terms of litigation

That's not appropriate though because most of the issues that arise are resolved without the use of the court.

Critique:

Tries to take a culture wide view. Instead of discussing the issue at the level of the rational individual, it looks at what people end up doing. It ignores the motivation for entering into that behavior

Authors sought objectivity- how different tribes had different ways of reacting to a problem

Failure to use economic studies in the cost benefit analysis of why people pursue court use?

Concepts of proportionality and what constitutes a proportional response - balance of harms to each side.

Protagonists of ADR make the claim that there is limited power balance in the adjudication process.

Client is often perceived as lawyer v. opponent with judge overseeing. Little time to stop and reflect on the personal issues of the parties.

Triadic model is really just discussing a point of decision making. The jury is still just one point, same with the judge.

Triad model and the defendant in judicial proceedings

Most defendants fall within a particular demographic

People are often aware that the deck is set against them, they realize the need to get back to their family and want to avoid the adversarial process so they can get back to their family.

We are seeing an increasingly shrinking number of cases tried by a jury in the UK - Part of this is because UK judges know that juries are more likley to acquit. Judges dislike this, and so try to keep the matters in bench trials.

One attorney felt that it was so hard to get the jury to pay attention that one of his biggest hurdles was to get the jurors to pay attention and take an interest in the matter.

Process of consent

Make occur that something such as mediation leads to the parties deciding on arbitration, in which a party refuses to submit, where the parties need a judge to intervene. At that point, we have legal views and legal means of deciding matters.

In the US and UK system, you are either guilty or not guilty. However, the court can modify things when choosing sentencing as a means of indicating the severity of the matter.

Woman began to suffer from pain in her arms. Went to Doctor who diagnosed repetitive strain injury as a typist and keyboard operator. The result was that she was suffering this injury in both of her arms. Her personal social problem is translated into medical reality through the doctor. The doctor thought to gain some financial benefit. The company refused. The woman then sued. Judge said that repetitive strain injury is known to science, but not known to the law. As a result, the claim fails.

The judge applied legal reality to the social problem. What goes on in court is legal reality, and legal reality trumps all other forms.

Bentham - the formal law does not accept compromise. You are either guilty or not guilty.

This is in contrast to mediation or other forms of negotiation, where you take one charge in exchange for avoiding others. Or agreeing to give X amount of money to end litigation. We do DEALS, not JUSTICE. The Judges does justice when he hands down a decision that a defendant is guilty or not. That is justice under the law. It is application of legal rules to the facts as found. The rest is just deal making.

Prosecution tells a story as to why D is guilty. Defendant explains why they are not guilty.

In terms of forms of legal decision making and purpose, the court treats your case as asking a question - is D guilty, or not?

The process is a means of finding an answer to that question.

But when you get down to the matter with Arbitration, then it becomes about solving a problem that people are in, foreclosing a need they might feel of going to court.

Issue of culture

You do find that willingness to litigate, to consult a lawyer, seems to be heavily bound up in cultural expectations.

January 22: Legal processes class 6

(i was the presenter class 5, i should get someone else’s notes)


galanter is a professor at the university of wisconsin law school, which is a hot bed of sociolegal research. he also visits the london school of economics. he is the great synthesizer in this field. i think he has a fantastic capacity to bring together and make sense of all kinds of materials in legal processes.

“why the house comes out ahead.” and the paper next week are the most cited papers. i won’t say anything more, so let’s go into the two presentations.


student presentation

mix:introduction of beauracracies. the common law judiciary… is it beauracratic?

forms of communications: precedent, statutes. looser forms of communication: lawyers and judges tend to perceive things in terms of received categories.


background attitudes affect outcomes… judges not freestanding individuals. culture has impact on way judges decide stuff.


pyramid thing much like the naming blaming and claiming; class race education culture effects how far up the conflict pyramid people will go. lawyers function as gatekeepers.

judge as decision maker. galanter uses the term “moving classification system.” we always need to classify things in a certain way. there’s cognitive channeling in how we view the dispute. do we want judges to respond to the political culture of the day, or be static? galanter says we’re moving, but not moving as fast as the political culture is.


chart: what are the characters of judicial activism?

“doctrinally innovative”: breaking with precedent

universalistic vs. particularistc, etc. (see p. 149 for the chart). you can be viewed as a judicial activist if you follow the black letter law and the black letter law is contrary to the political culture… (of your critics).


socioeconomic factors play into whether you view something as a grievance. (me: maybe rather whether they respond to the grievance rather than view it as such?)



second half of the reading:


two different sections. first half:why adjudication is uncommon. second half: why adjudication is still important.


cultural proclivities to litigate: societies that tend to litigate matters can be viewed as rights conscious. litication can be associated with self-assertion and open conflict.


court processes don’t necessarily match up with their policy objectives. courts with full blown trials might force more pre-trial mediation. the legal system is generlaly used to set the stage/shadow for negotiations, i.e. plea bargaining and civil settlement.


negotiating: criminal: less like a bazaar, more like a supermarket. prices labeled in advance. not as much haggling as one would think.

research shows that judge facilitated negotiation can be less effective, since parties more likely to buy into settlement if they agree with one another on their own, and thus own the settlement.

peoples afraid of going to court.

courts can be seen as courts of appeals for trade associations or other mechanisms for resolving a dispute.


special effects vs. general effects = special deterrence vs. general deterrence. those who experience courts less satisfied than those who use them from afar?


lawyers: do they find courts demoralizing? difficult to get to the top of the pyramid?

end of student presentation

difference between criminal and civil law: in criminal law you feel that you’ve been victimized.

say two football fans get violent with one another. they might think of it as defending the honor of their team, and this sort of scuffling might not be thought of as criminal. but someone else at the club might see it that way. in all of thse cases, we see social definitions about the nature of an activity, to which the law may be relevant.


culture is expectations.

law and its initiation is heavily dependent on our expectations.


the response of people to perceived injury has to do with their expectations… e.g. what they expect from the person who has injured them.

litigation rate in US vs. Japan—higher in US. less formal negotiation in japan.

behavior of people in rural illinois when they felt victimized. two instances for research: victims of personal injury, and contractual disputes. researcher found that when the people were injured through the fault of another, what they tended to was lump it. they put up with it. accepted it. if you got injured, that was just fate. “that happens to anyone.” “one of those things of human life, people are softer than cars.”

student: taxpayers may bear the burden—the cost of the injury is spread to the rest of society rather than focused on the tortfeasor. so lack of litigation could be a bad thing.

but you see very different behavior where contractual disputes were concerned. when people thought someone else had broken the terms of an agreement, this was bad. someone was breaking their word. people were much more willing to consult their lawyers.

btw, we’re dealing with rural americans here. it’s quite possible if you run someone down in new york, you’ll have a personal injury claim on the way.

something interesting happens with english behavior, and other europeans. general finding is that europeans are much less ready to define a matter as the law’s business. some research data… and possible explanations…


colleague mounted a huge nationally representative social survey of england and wales, which looked at their experience of social and economic misfortune, in particular, how people responded to being injured, e.g. car accidents, work accidents. 1711 cases where people were injured in some untoward way through the fault of someone or other. people were injured so badly they couldn’t function normally for at least two weeks, some paralyzed for the rest of their lives. how many of those 1711 thought of consulting a lawyer? what proportion consulted a lawyer? what proportion of americans do you think would consult a lawyer?

in this country, 12.5% thought about consulting a lawyer. another 12.5% thought about it when another person put it in their heads as part of the process of being injured. a doctor in the hospital, a nurse. so about a quarter of the sample thinking about using a lawyer. what proportion actually consulted a lawyer? 12%. How many actually got to the door of the court? 4 cases. 4 cases out of 1711 injuries got to the door of the court. that shows you, i hope, quite vividly, that people in this culture don’t think so much about using the law. that research was done in the years immediately preceding margaret thatcher. she was, as you know, a very right wing politician who was very distrustful of the state as a benevolent actor, she and ronald reagan were soulmates. one of her great campaign ideas was to roll back the place of the state, and make people much more individualistic, get on their own two feet, not to rely on the state, and so on and so on and so on. i suspect that has had an impact on the way that people relate to the law.

since she ascended to power, we’ve seen more people willing to think of the law, but that study hasn’t been replicated, so we don’t have comparable data. but there are nuggets you can look at it. for example, the number of claims on our state funded civil compensation scheme (to provide for the means for civil litigation) claims involving medical negligence were virtually unheard of in 1980. but over the next twenty years, they increased year on year quite substantially. almost certainly that has something to do with the attempt thatcher made to change people’s cultural awareness. culture/expectations are one thing, but institutional organziation/setup is another. what would be your first thought in the states if you were knocked over crossing the road, and injured?

“will my insurance cover it? who’s going to pay? how will they pay?”

more invitation to access the courts in the us (student: personal injury ads).


used to be a law that solicitors weren’t allowed to advertise in england. thatcher changed that because she wanted more competition to drive costs down. if you watch daytime television in this country, you see similarly advertisements for lawyers’ services. “no win no fee!” i only watch daytime tv when i’m rowing my guts out at the gym.


until the midnineties in this country, if you could afford to pay, you paid. if you couldn’t afford to pay, the state would pay for you, both for criminal and civil cases. but the bill to the treasury kept going up, because lawyers wanted more money, and because they increased demadn. so the thatcherite demand for increased competition lead to increased demand which lead to greater demand on the treasury, which, in a roundabout way, countered thatcher’s policy. so beginning in the mid nineties, legal civil aid has been privatized. now a conditional fee basis (not quite a contingency fee you would recognize in the states). but the contingency fee makes it relatively easy to consult a lawyer.

  • if the lawyer takes your case, the lawyer’s fees are paid out of the damages he or she wins for you, and you agree over the proportion it’s to be.
  • thatcherite reform: conditional fees.


also efforts to extend ADR systems. but the downside of mandatory ADR is that you risk increasing the amount of adjudication by creating an even longer more drawn out system of adjudication.


one of the main things my colleague found was that people didn’t think of law and lawyers because the National Health System paid for everything.


are there studies that compare the propensity to litigate among insured and uninsured? (prof doesn’t have info on hand, we’ll have to search for it) next week you’ll be reading about contractual disputes. in the us there seems to be a strong desire to avoid lawyers in contractual disputes.

one researcher’s conclusion: one of surprise that so many americans lump it.


activist passive judge dichotomy

criminal cases in the early sixties, brown vs. board, politically pulled in the sixties. terrific debate between patrick devlin and jeffay with jeffay complining that english courts were too passive. but the problem with arguing for activism is that it can lead to instability, a lack of predictablilty and clarity.


but we need a finer grain that simply talking about judicial activism and passivity. i’ll reference our appellate structure in this country. if you go to the high court in london… and someone appeals, then you come to the court of appeals. in high court, matter is heard by a single judge. court of appeal has panel of three judges. if that’s appealed, it goes to the house of lords (not the house of lords in its legislative capacity, but the judicial capacity, 12 or so judges). normally a panel of five, may be seven if case is important. i don’t have any systematic evidence to support this, but the impression judges have given me is that at the high court level, judges are much more inclined to follow precedent, much less inclined to innovate, perhaps because there’s this appellate structure and judges don’t like being second guessed. so you tend to get a degree of passivity at this level. but at the court of appeal level you get much greater activism, and similarly, at the house of lords level, where institutionally, things are arranged for innovation. house of lords free to depart from precedent. they are officially permissible at this level. they need a good reason of course.


adjudication can be harmful. i haven’t seen anyone who was involved in a family law dispute who said, “court really helped me.” usually they say it was horrible and that court made everything ten times worse.


final point goes back to alex’s query about insurance companies, and i said it had an important implication for legal behavior/processes. i need a couple extra minutes. there’s a contrast that galanter has made a lot of, and you’ll see in the last piece. a major contrast between “one shot” decision makers and “repeat player” decision makers. if you get run down crossing the road here and you want to sue the driver, you go and consult your lawyer… the driver will pass the claim to their insurance company, and the acme insurance company will dispose of the matter. and the acme insurance company is a repeat player, this is routine for them.

someone who’s knocked over by an aberrant driver is typically a one shotter. in the states, where there are roughly four times per capita the number of lawyers than there are in this country… lawyers are less familiar objects. lawyers here wear four piece suits and live behind a brass plaque which is always kept very shiny.

my colleague found that people went to a lawyer felt they had a legal problem, not when they had a legal problem.


you can be sure the acme insurance company knows who the best personal injury lawyers are. but a one shotter is not going to have any idea who the specialists in personal injury cases are. the one shotter might hire a lawyer who doesn’t want to turn away the work and doesn’t specialize in personal injury.


mcdonalds, when people complain about getting scalded by hot coffee, can hire the best lawyers money can buy.


if you’re just observing the tacit rule for end of class silence, then raise your questions on wednesday.


January 28: class 7: Sam's notes

Outline of Hawkins Reading


A study on dirty discharges.


The deviance of pollution, and interpretative judgments which enforcement agents make about them.

Field workers apply discretion in determining what they do, but the real issues involve an almost economic analysis of what they act on, and how they behave.


First Step:

Identify discharge


Proactive Enforcement

When the field officer seeks out pollution. In many cases these involve non-polluting or marginal cases where the officer’s time is better spent on other matters.

Often better. Collecting a sample takes time, including 2-3 weeks at the labs. But showing up makes it known to those discharging into the water that the observer is there, watching them, without necessitating a sampling of what they’re dropping in the water.

Reactive Enforcement

More harm to organization. When others notice for you, you HAVE to react, and can’t get away with the curtosies that may make work more efficient. And MP reporting a problem is going to consume lots of hours, no matter what.

Also presents a paradox- if a pollutant is mobile it means people will notice, but it makes tracing very difficult.


First - Steps of judgment

Moral question – what is tolerable

Technical ability to impact

Economic capacity of discharger to comply (gauged by common sense)

May mean turning a blind eye

What is a pollution?

Will there be an impact? Will it cause a problem?

What can they assess? If there is no clear culprit, or no easy way to determine what pollution has leaked out, then pursuit may not be efficient


Judgment really means establishing a division between the letter of the law and the spirit of the law. The idea that you can control these discharges, but taking action is an expenditure regarded as totally unjustifiable. The purpose of the law is to prevent mass pollution. While the law itself says that a certain amount of mercury should involve some kind of sanction, the purpose of the agents is to enforce. They’re a scarce resource and following the letter of the law would mean that they might be unable to succeed in terms of the law’s spirit.


Second – Organizational context of discretion

Noticeability

Contamination that is noticeable is a problem, it is obvious to the untutored that all is not well. This means that a complaint can be lodged, requiring a response, so an officer, who only has 2,000 hours a year to work, has to focus on detergent in a stream for several hundred hours, giving less time to a zinc pollution which may be far more dangerous, but less obvious.


Knowledge that the officers are responsible to the public at large. This is the driving force of agents. The knowledge that failure to respond properly to problems will result in greater issues as the public becomes aware of pollutants.


Noticeablity- attention to location and time – thus quantity and quality of discharge and its quantity.

Tidal river discharge – if it was very bad that might provoke a word from the officer.

Large discharge in major or obvious waterways is another matter that may invoke action.

Summer time means higher scrutiny by the public served.

Pollution in heavy rains is passable, because it’s less noticeable since there is generally lots of discoloration naturally occurring.


Relativity

What is normal and what is noticeable. What is noticeable is what stands out from the past experiences of that that tributary and the discharge in the water.

The worse a water course is, the less important the discharge of a tributary. Less likely to be visible or cause ill-effects.


External Observers

Fishermen – good because they’re another set of eyes. Bad because they can distract from bigger problems but by complaining they force a response from the government officer.

Workers at a plant – since pollution can come from multiple sources, an inside man helps to identify where the problem arises from.


Externalities

Variance in pollution control’s ability to make an impact, sampling and analytical error.

The government initially require compliance in 70% of cases.

That increased to 95%, but demonstrated an understanding that sampling itself was a variable.

Because of irregularities, the deviant is usually given the benefit of the doubt.


Officers must also account for the impact:work ratio. Testing everything in reach can force compliance, but means lab hours, paper work andthat means time not spent in the field talking with companies and farmers which can be far more effective.

Social connections play a major role in the effectiveness of the officer. Having a repoir with the polluter means a heightened ability to convince them to take action without threats. It also means that you are more likely to notice irregularities.


Discovery:

Know your district

Knowing people and processes means you can organize expectations and inform efforts.

Allows for reactive enforcement. – educate people on what they can and cannot do.

Be suspicious

Know that you are going tete a tete with a polluter. Their goals and yours are not in sync. Go to where the problems are likely to be.

Cover yourself

Protecting yourself from your superiors. Matters when they might hear of discharges from the public. Lots of publicity means the agency is harmed.

Minimize the maximum damage.

The result- you look for samples when you think pollution could be visible. Worst case scenario, you toss the sample. Agency only complains when officer fails to take action.

After a while this becomes second nature “art more than science” though there’s an example of a clear, non-obvious problem that turned out to be zinc in which this “eyeballing” was insufficient. Makes clear need to test in cases where something doesn’t quite fit.


Efficiency

More important the discharge, in terms of volume and probably visibility, the more often it is sampled.

Agencies would like to be random when they appear, but that brings a cost. Again, a balance between cost and efficiency.

May mean telling people you’ll come back on a set day and then not showing up.

Complaints mean greater attention. Greater attention means harm to agency and agent.

If you can get things done off the record with a talk, that’s better than a report and lost man hours.

Profiling

Knowing the occupation of the polluter, past behavior, or performance mean you know where to look.


Seriousness

Officer’s conception is bound up with vulnerability to organizational control. Agency’s conception is linked with a notion of publicity. Agent determines what will come down the pipe for the agency later on.


Pasted from <file:///C:\Users\Sam\Documents\Spring%202009\Legal%20Processes\Outline%20of%20Hawkins%20Reading.doc>

January 29: legal processes class 8

Question of whether legal agents should react to what they encounter or whether they should turn a blind eye. Material we’re looking at looks at how police interact with people on the street, which is very influential in catching up certain people in the arms of the law, but not others.


Everyone in this room has broken the law… brought something through customs, had too much to drink before they drove a car, didn’t report something on their taxes. Crimonological research looked at convicted offenders to try and find out what made a certain group break the law, and then focus shifted to see when the criminal law was brought into play by those exercising legal authority.


I think you’ll have seen from the article how selective police discretion is. I’ll leave it to you to decide whether it’s biased, whether it’s improperly biased.


Nick’s presentation

The crime report in the news isn’t the rate in society, it’s the amount that’s discovered, and that’s reported, and that the police take notice of and make official reports of… the crime rate better understood as the rate of socially recognized deviant behavior that is discovered. Three flavors:

  • Undetected
  • Detected and sanctioned
  • Detected and unsanctioned


Most of what police come into contact with is reactive, stuff that gets reported, rather than proactive efforts like prostitution stings. From that point on, police act as the gatekeepers, determining whether something will be pursued as a legal case or not. Only 64% of complaints police receive get turned into crime reports. so 36% get filed away without action. the study was 36 observers following officers. they told the officers they were going to look at how the suspects behaved, so they used a little trickery to get the data.


Black identifies a few factors.

  • Misdemeanors turn into reports 50% of the time, felonies 70%. Which makes sense.
  • Complainant’s preference: person reporting crime has an effect, e.g. if the complainant doesn’t want the other person arrested, they often won’t be.
  • Relational distance: if the person you call the police on is a family member or close friend, the police will be more likely to think some other social institution will be a better solution than hauling them off to jail.
  • Complainant’s deference to the police: if you’re polite to the police it’ll increase reporting rate of felony’s to almost 100%
  • socioeconomic and racial status: this is data from 1966, but race wasn’t something that had signficant impact on whether police filed a report, although he found that blue collar complainants were less likely to have reports filed on their behalf than white collar complainants.



Alice

Field method was in 1966 using precincts from Chicago, Boston, and D.C. . Definitely large urban areas, homogenous populations, poorer areas—i’d be curious if the statistics would turn out the same way today in other areas.

another point: the power of the citizens to discriminate themselves.


the relational aspect seemed like it would have a huge impact on domestic violence and child abuse, which goes unreported today. it leaves intimates in danger and strangers protected… but maybe the dangers of intimates is worse than the dangers of strangers.


etiquette: seems to give way to natural desire to do good things to people who are nice, and vice versa.


difficult to analyze race because you’d have to isolate all the variables, which are very interconnected.


Alice description

arrest patterns follow the preferences of the complainant, much like preferences for making a report.


police acting like legislators by choosing whether or not to arrest for misdemeanors and felonies based on seriousness.


people who are disrespectful to the police more likely to get arrested.


author suggested that rate of arrest among black people was higher because of rate of disrespect.


nick criticism

nick didn’t buy it.


i don’t think you could reach some of these conclusions based on the data they had. they started off with 5000 incidents over 49 days worth of observations, then narrowed that down to 250 observations, then broke it down even further, blue collar, white collar, white black, felony misdemeanor, levels of politeness. the margin of error for 30 or 40 incidents is huge. it’s difficult to evaluate what the real difference is between and 60% arrest rate and a 47% arrest rate given the sample size.


he also evaluated all of the factors independently. you can run statistical analysis that tries to combine and then isolate, multivariable analysis, to determine how much each component factors into the whole. what this might show is that there’s a lot of overlap between politeness and socioeconomic status… but he didn’t seem to explain the causation, he just found that one factor correlates positively with a certain outcome. but there’s no determination of the underlying factor that ‘’causes’’ the police report to be filed or the arrest made. we’re not given enough details about the way the study is conducted.


online criticisms complained of his pure sociological approach which disregarded individual decisions… there was a lot of things in the specific encounters that were distinct to specific encounters… there may have been aggravating factors which weren’t taken into account. i think he tried to make more definite conclusions than what the data warranted.


hawkins

a wide range of studies on police discretion. i chose this one because he writes particularly clearly. there have been a lot of other studies, and they all tend to show the same kinds of patterns. they tend to show that the police exercise wide discretion… which may strike you as common sense, police have to exercise a wide discretion, because if they exercised none at all, and proceeded every time they encountered rule breaking, the system would be overrun. what black’s piece does is show some of the features in which they ration the criminal law.


i’m not too exorcised by the percentages, because black’s work is primarily graphic, which he confers a spurious science on top of it—just think in terms of general tendencies and proportions.


kate: the disrespect issue raises a chicken egg problem, if you are treated poorly by the police, then you’ll naturally disrespect the police.

hawkins: if you’re another race, you’re more likely to be stopped, arrested, convicted, and to get more severe penalties, at every stage in the process.


note the difference between proactive and reactive—the police have a great deal of dependancy on the people making reports, assuming they have to be reactive. there’s a ritual played out every december and early january, the police crackdown on drunk driving. every year the police devote more resources to policing drunk driving. if they do that, they have fewer resources for assault, arson, theft, etc. similarly, if they are cracking down on a certain kind of offense, they’ll target certain areas, and certain kinds of people, in the belief that you’ll find a certain kind of criminal activity somewhere. so if you have expectations about criminal behavior, you’ll tend to find those people in the population. so you have a self-fulfilling prophecy, which will confirm your thoughts that people in this area and of this type are the people who commit such offenses.


furthermore, clever people will try to confound the stereotype, playing the part of a middle class couple with children—there was a case with a couple caught bringing pounds and pounds of marijuana across the border.


the worser crimes almost always come to police attention because of someone else. rape, burglary, assault, etc. proactive enforcement is only available against offenses which are of a continuous and regular nature, like drunk driving, prostitution, etc.


what does a crime rate describe?

most people assume that it describes the behavior of criminals. it rather describes the behavior of enforcers. it describes how much untoward behavior is being acted on by law enforcers.


if you looked at the rate of burglary in new york, the graph would skyrocket around 1950, where there’s a tenfold increase. can you explain?

  • it describes the behavior of police officers. in the fifties, a new police commissioner was appointed, and he said in the future that when people say they are victims of burglary, it has to be reported. secondly, the police were required to report that they were victims of burglary, not theft, as some of the police had been doing. so the word went out, and police started doing as they were told, and that was the result. so the rate of burglary described the behavior of police officers, not what was actually happening to the rate of burglary.
    • so whenever you hear on the news or read in the papers that some offense increased by N percent last year, ignore it. unless it is data drawn from crime surveys which go to actual members of the public to find out whether they have actually experienced being burgled or were victimized in some way.


how bout that point about relational distance? i hope you can see that this is one of the constant truths of legal processes—wherever theere is contact between two parties or whether they are strangers is profoundly important for whether the law comes into play. fthe thinking is that the parties concerned can maintain their relationship, commercial, familial, etc. it’s when people are dealing with strangers that they’re more likely to use formal legal methods. an example from the research that went into law as last resort.

  • the safety executive presides over a number of inspectors. 50 inspectors for 300,000 regulated agricultural sites. so every inspector has a large number of regulated sites. contrast that with the nuclear inspectors. 120 inspectors dealing with 60 regulated sites, nuclear power plants and nuclear installations. roughly two inspectors per regulated site, as opposed to 1 for several thousand. the nuclear inspectors get to know the people they’re dealing with, sometimes they spend two or three weeks at a regulated site. agricultural inspectors have to be here there and everywhere, policing a population of strangers.


if you look then at the way they use the formal law, you’ll notice that the agricultural inspectors will be quite ready to prosecute . they have no other alternative. they can’t negotiate, because they’re not going to be back there for another seven years. nuclear installations never get prosecuted. there was one case in the northwest of this country quietly turning the irish sea radioactive. they had a leak, and the only reason they were prosecuted is because the minister asked them to be prosecuted—the inspectors were leaned on to prosecute.


miranda warnings. i don’t know what the impact of miranda warnings has been, but we frequently deal with the stage at which police decide whether action has to be taken, which is before the point when they need to read people their rights.


fraud is often only detected by accident. awareness that a crime has occurred, coupled with people’s decisions to lump it, causes a lot of crime to never enter the system, even though it’s quite serious. rape for example. we have no idea what the extent of rape is, because of all the oscial impediments to victims reporting the offense.


other levels of discretion: sometimes the police are called, but don’t come. sometimes they come but don’t do anything (lack of evidence, triviality). you can map out this sort of attrition. prosecution might not go through with it. prosecution might end up with acquittal. so only 2-3% of matters which are reported to the police survive to the state of conviction. the irony from a legal point of view, for lawyers concerned with even-handedness, etc., the key point is that it’s in these EARLY stages where the most discretion is exercised, where the most unaccountable discretion is exercised. can you control the discretion of the police, even if you wanted to? how would you do it? the police operate out there in a very public world. when they’r negotiating with suspects, they’re engaged in a privte transaction, and they can operate however they choose. 


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class 9 - february 4 legal processes

so far you’ve seen how events out in the world happen which are relevant to the law. if people don’t know anything about the law but feel wronged, they won’t be able to do anything about it, they won’t know how to initiate a proceeding, or know that what they’re observing is a criminal matter, etc.


then there’s another category of people who know that the law could apply to their case, but choose not to take action, choose to lump it in a civil claim rather than to do anything.


in a case of grievance, it may be turned over to the control agent. if you remember my chart of attrition… i mapped out key decision points. at these earlier points there’s probably more discretion than when it gets taken into the control system. when a claim goes to a lawyer, or to a judge, the chance of the claim dropping out of the system drops, and the range of discretion becomes more narrow, more formalized (protected by due process concerns and such). you see the irony there. we provide due process in court, but all the action is taking place before then. so we provide all of these procedural protections, but only by the time we get to court.


(stable doors, horses bolting?)


deep pockets and parties who want their pound of flesh might take it further.


discretion at the lower levels of criminal law is very “off the cuff”, a good police officer is one who can “handle a situation”. the police are supposed to “deal with something here and now.” note that when you proceed to the formal end, the exercise of discretion becomes more and more considered. judges may feel that they have all the time in the world to decide the matter.


backward looking vs. forward looking discretion. in forward looking discretion, actions are taken based on predictions about the future. what key point to bear in mind is that when you look back, the past is much more secure. when we come to making predictive decisions, we move to a much more uncertain world because no one can predict the future.


with organization matters, the institutional structure of the organization is very strong.


presentations.


dan

hawkins chapter on pre-trial processing.

  • can shape way a case is handled in formal adjudication.
  • affect how advocate will push a case
  • affect how case will come out.


chapter focuses on health inspectors looking at violations, they are the ones who start the prosecution process or not. they hold a lot of power. questions early on: what kind of evidence, who to charge, which witnesses, charge individual or entity, who are the witnesses, etc. the answers to these questions affect what happens down the line.


centralized or decentralized decision making. decision to prosecute might get passed up to a central point, which could introduce consistency.


other side is decentralized decision making.


efficiency and consistency may result if advocate and inspector are the same. but there’s also situations where the inspector still farms out stuff to a solicitor, like if he’ll be called as a witness or if the case is complex.


last part of the chapter: inspector has a lot of power because he can frame the case; depending on how you word things, the vigor with which you present information, etc.


sophia: criticism

one thing i noticed was when discussing the decentralized method, there were a lot of positives, but not much description of the negatives of having an inspector act as the advocate as well as the inspector. even though the inspector has a greater perspective because they’ve seen the process from the beginning, it’s possible that someone who’s gotten overly attached could lose objectivity.


also, inspectors may be less experienced than solicitors in general. the reason why assembly lines are efficient is because everyone is doing the job that they’re good at. does assemby line efficiency work here?


field inspectors: how much power do they really have in what gets prosecuted? inspector said, “we can prejudice future decisions in the way we write something.” if they want someone prosecuted they’ll write it in the most persuasive way possible. it’s a little scary to think about, because maybe people with personal vendettas can use their vendetta and their position.


Sanders’ article discusses the role of the police in preparing case to be prosecuted. he talks about this 51% threashold level, the reasonable prospect of conviction. in trying to meet this threshold, police have a dual role. they help the defense as fact gatherers. but they also create a case for the prosecutors, and this is the role the police focus on. sanders describes this latter role… and the methods used to make a case stronger. they try to create an obvious sense of guilt, and try to hide things that create a sense of innocence. they’ll only document helpful statements. “there’s no point in taking down a statement that’s a pack of lies,” but the truth is just what the police thinks. also they get confessions via isolation, and those confessions will be recorded, whereas previous denials will not be recorded. they’ll also choose their cases based on their other arrests. arrest first, decide which ones worth prosecuting later. all this can result in prosecutors getting blindsided by information down the road.


police have quite a bit of discretion over what gets prosecuted. you can’t really separate the police and the prosecution, they rely on cooperation from one another. the prosecution service can vet and reinvestigate, but reinvestigation causes similar problems to police investigation, and may be less efficient. so author feels the point of the crown prosecution service is to assisst the police in crafting stronger cases and not really to act as a restraint on the police power (what they were intended to do in the beginning).


dan criticism

sanders is pretty harsh on the police. but the legal system is an adversarial process. juries don’t get the whole story, they get two stories. difficult for people besides the adversaries to call witnesses. after the police reach the 51% threshold, they go full throttle and ignore evidence that might exonerate the defendant. argument: this is ok, because at this point it’s reached the adversarial process, and we’re better off having two sides form two different cases after the threshold of guilt has passed.


counter: police have interviewing powers beyond what typical people have. counter counter: defendant has safeguards, due process, grand jury indictment, etc.


back to hawkins

anyone want to reflect on dan’s comments? even though he told us he was playing devil’s advocate?


i’ll park most of your arguments for now, but i want to observe that when you talk about the procedural protections and due process and so on, don’t forget that they happen at the tail end of a process when, arguably, the damage has been done. i know in some states police ride around with cameras in their cars which they turn on when they interrogate a suspect.


so what do the arizona police do? sometimes they’ll talk to them further behind the car, away from the camera, or talk to them before the on camera interrogation, etc. in england, similar rule: when the police interrogate in the police station, the proceedings must be tape recorded. result: suspects get interrogated in the car.


police supposed to inform of right to solicitor, but they often will forget to mention it, or play down importance of it, such that only 30-35% of suspects do take advantage of this right.


proliferation of people with video cameras and youtube might serve as surveillance of police misconduct.


a terrible irony is that not only is the greatest power exercised at the beginning, but it’s exercised by the most junior officials in the organization. presumably the worst paid, the least accountable, and they exercise the greatest power. a real challenge for law and ideals.


police/investigators know that when someone brings a problem to them, the person bringing the problem must have some interest in getting it pursued to find it so important, given the prevalence of people who lump it. that or the complainer is very familiar with legal practices and used to invoking them.


how about the implications of inspectors also prosecuting a case? they tend to treat it like it’s “their” case. also makes them sensitive to issues over the kind of case they create, and issues of winning. the more ownership, the more they want to win.


books makes a distinction between centralized and decentralized decision making. in a centralized system, you have the messy real world down here (at bottom of white chart)… terrific attrition occurring down here when inspector decides not to pursue a case… and a very few will go up to the top person. and some may again be dropped. but some may actually go off to court. it’s asimple line of decision making where one decision maker can be overruled by another decision maker, until they’re dropped or the court resolves the matter at the top. this gives people at the top some power over the people at the bottom. the discretion can be handed down in a relatively homogenous way. people at the bottom learn what kinds of cases won’t fly. potentially this gives rise to greater consistency than in decentralized system, because people tend, up to a point, to sing to the same hymn sheet. the inspectors at the bottom will have a certain view of the world. the more senior positions in the organization can have a completely different set of values. plenty of times i’ve spoken to people at the top about what people at the bottom were taking into account. the world up at the top looks very dfferent from the world at the bottom. so you run the risk that cases will be brought in due to one set of values, and disposed of another way at the top because of a different set of values. maybe the people at the top are worried about political fallout.


example of a man in a federal agency who made decisions in a particular way, only to have cases turned down by superiors. he was promoted, and then realized that the world looks different, and he actually turned down som eo fhte deicions he had made earlier because of this differenc ein perspective. now compare this with a decentralized system. (looks like upside down funnel). so you have police at the bottom, referring matters up to the principal inspector and then up to the area director, but unless a case is very big, it doesn’t go up past the first level. with this structure multiplied fourteen times over you can see that there will be a great deal of disparity and inconsistency, since there’s so few points for review. people in one office will behave differently, inspectors will behave differently, and the final decisions are made by them.


but the same results can happen in a centralized system… the ground level person can write a report in a particular way to cause something particular to happen. say that a probation officer is writing a review of someone on the edge. the probation officer can write a report which concludes with the evaluation, the recommendation…

“He’s been doing well but last night he beat up his wife.”

vs.

“Last night he beat up his wife, but he’s been doing well.”


you can show empirically that the positive turn up at the end will produce more favorable decisions at the next stage up. (my argument: the language is important, and the language tells you what the parole officer’s gut feeling is, and reviewers are often willing to follow the gut instint or desires of the ground level officer.)


to what degree is the difference deference to the opinion or deference to the officer? are they trying to please the officer, or are they actually swayed by the report?


strong incentives not to undercut your junior staff. one way to do that is to accept their recommendations up to a point. i give examples in chapter three of principal inspectors not accepting their ground level inspectors’ recommendations. but in the empirical case, you can’t tell why. the example with the parole officer, and the dual statement—that just shows the power of discretion , it doesn’t purport to split up the potential causes for why these words influence the higher-ups in the way that they do. so the difference in verbiage could have a result either (or both) because superior doesn’t want to undercut inferiors, or because they actually buy what’s written in the report.


Police ----- crown prosecution service ----- court.


CPS intended to control police discretion, independent of the police. but it didn’t work. CPS depended on police, interacted with them constantly, ended up as mere assistance to the police. CPS does discard cases, but only 15% of the time. institutionally appears independent, but they’re entirely dependant on the police for their understanding of the case. 



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class 10 legal processes, feb 5

dan used the phrase, “objective facts,” which alarms me. it’s hard to be clear that any facts are objective or unproblematic or so on. although there are facts we might regard as objective, like the defendant’s age or postal address, most quote facts are rarely that. maybe the defendant spends some time at that address, but more time at other addresses. so much of what happens, both in a trial, and before trial, when police are interrogating people, so much of what is crucial in an adversarial system is not truth determinate (subject to determination) but truth indeterminate. “the witness is a credible one.” not an objective fact.


is the adversarial process a search for truth? are police searching for truth when they interrogate suspects? no.

  • throughout the adversarial process, people are interested in proof. it is what they can persuade a court as the ultimate decision maker. they are seeking the persuasive case. not necessarily the truthful case.
  • what the parties are trying to do is win. and when you get out in the cold hard world of practice, and a client comes in, you’ll be trying to put the best show you can, for your client, because your duty is to win the case for your client.
  • i can’t tell you how many prosecution reports i’ve read that say somewhere in the course of reporting a witness statement, “he or she will make a good witness” because they don’t present themselves as memorable or credible.
  • i’m skeptical of the high minded claims people make, “truth” and “justice,” when the name of the game is winning.


right to silence: goes back to early medieval times. in 1994, the then conservative gov’t, the minister substnatially eroded the right to silence because he wanted to achieve a higher conviction rate. rule was changed in the criminal justice and public order act, such that a suspect remains entitled not to say anything, but if he or she chooses to remain silent, this fact can be mentioned to the jury at trial and the jury is then free to draw whatever conclusion they wish to draw. obviously the conclusion they’ll draw is that they had something to hide and they must be guilty as hell.


decision makers have to strip out ambiguity, which is why police are so interested in gaining confessions. if you get a confession, you’re substantially on the way to getting a conviction.


one of the themes i return to in the penultimate chapter of the book is you see the participants trying to fit the quote facts into the case into legal definitions. translating the messy realities of the world or problem out there into definitions which the law can work on. so if you run out of here into the snow to drown your sorrows at a pub over having such a miserable hour and a quarter, and you get hit by a big red bus, and the law student comes off worse because law students tend to be less resistant, you may wish to sue the bus driver on the grounds that he was being somewhat negligent quite so fast in these conditions.

the law will be concerned with questions like, did the driver owe you a duty of care, did the damage you suffer come from that breach. it doesn’t have much to do with your pain or suffering or need for monetary compensation. the law insists on things getting fitted into the framework it establishes, so your job is one of translation.


laura’s presentation

pretrial choices that inspectors have to make before getting to the court system. most important is choice whether or not to prosecute in principle. all of these supporting decisions are complicated by their respective nature. lots of subsidiary quesetions—will they be able to achieve appropriate penalty?


and they still have to choose whether to charge individual or company, charges they’ll bring, forum they’ll choose.


management of appearances, ability to win, relationship with those charged.


parsimony: using too many charges can attenuate the force of the case. can make HSE look vindictive. something they worry about. parsiomny also conseres resources. too many charges can also lead to a not guilty plea by the defendant.


precision: something about choosing the proper statute and getting under the umbrella of the best one.


simplicity: the way inspectors try to control the outcome. if you keep it simple, less likely the magistrate will misapply the law or the jury won’t understand.



choice of forum can affect penalty. if it’s an egregious act, they’ll be expected to go to the crown court. crown court has publicity and unlimited fines, but a lower chance of conviction. crown court indictments get better publicity than magistrate trials. HSE gets to look like the good guy in high profile cases. also if the public finds out about the case and it’s not in crown court, public will be demoralized.


general practice is to avoid the crown court unless you have to.


handing case over to solicitor may be undesirable to inspector, worried that things won’t be handled the right way by an outsider.


magistrates are also more stable and predictable in the possible outcomes than a jury.


kevin’s criticism

parsimony: idea in the book is to minimize number of charges. but limiting the number of initial charges weakens your bargaining position. strategically you want to start out with a big hammer in the background.

  • on the flip side, if you throw the book at them, they might get mad and refuse to settle. they might hunker down for a fight.
  • you typically don’t want to seem vindictive. sometimes you do want to seem vindictive, if the public perceives them to be a bad guy.
  • max penalty of magistrate court might have the same effect, weakening inspector’s bargaining position.



notice issue: if employees never see other employees getting punished, they won’t know there’s sanctions for unsafe behavior.


seems easier to punish organization than employee. inspector might have relationship with organization.


something about employees. employees might be acting on their own, maybe the injury is the best way of notifying them that they were doing something stupid.


if you’re an inspector, is your job to catch the bad guys, such that you don’t want to spend a lot of time in court?



lots of social values feed into discretion, limiting it. there’s a lot of things going against charging the individuals. courts are reluctant to charge individuals. everything seems to lean toward charging the company. they can charge an individual but it would have to be a really egregious act to counter social values. people might be more likely to rat out corporation than other employees. you might be less likely to rat out your company during a recession if there isn’t much in the way of statutory job protections.


in america, courts approve plea bargains. not so in UK, pleas have to be accepted.


defendants: powerless in this process? not really. they know that HSE really wants to get a guilty plea on one or two charges and move on. management might or might not want to be a holdout, depending on how important public perception or relationship with HSE is.


emphasis: not so much on justice, but on convenient justice.


specific deterrent effect of injured employee. general deterrent effect?


presentations complete

i would expect the things i’ve analyzed in this chapter to be replayed in OSHA when they have decisions to make about prosecuting a case. OSHA prosecutes significantly fewer cases than HSE in this country, so there’s an even stronger screening effect and bias against criminal prosecution. but i would expect the same kinds of motivations to come into play.


both students mentioned the management of appearances. it reflects the political context of this kind of legal activity. regulation is, in general, a politcally contentious matter. there are various publics that are rather hostile to the idea of social regulation or financial regulation who argue that you can’t tie everyone up in red tape. that you have to leave people free to make widgets and not constrain them too much about rules with health and safety or pollution, otherwise it’ll be too costly, and the local producers will come out behind the international competitors.


and of course, there’s people arguing on the other end, for more enforcement , more stringent penalties, etc. and whether the EPA, HSE, OSHA, etc, they are caught between these opposing forces. the agency tends to declare to the contending publics where it stands on these matters, so they have to choose very carefully the cases where they’ll stick their heard over the parapet. when you go to court, that’s when you reveal your inspection and enforcement practices.


as someone said, prosecution is a resource exhausitive activity. competing defendants might be chosen because one is less costly to prosecute. example: pollution scene is forty miles out, compared to another that’s only 5. they’ll pick the 5 mile one because it’s cheaper to gather evidence.


you enforce the law not by prosecuting offenders, but by acting prophylactically, inspecting, talking to parties, educating them about fitting the regulations, etc. getting a conviction could be a very inneficient use of time if you’re better off negotiating with lots of deviant employers.



effect in rural areas of the country: if there’s a breach involving a farmer and an agrictulrual regulation, dumping pig slurry into a concourse, the rural magistrates tend to be much more sympathetic than urban magistrates would be. that’s anecdotal, but entirely plausible. i came across instances in the US where people convicted in rural counties served different periods in prison than people in urbanareas convicted of the same kind of offense.


in king county, seattle, washington, got nailed to the floor for incest. as compared to rural eastern washington. drug offending tends to be viewed differently in urban as opposed to rural settings. the sociocultural bias plays out in different ways. could that be because the populationis more homogenous, the defendant is more likely to be someone who looks like them? or is it because of a genuine mindset in those areas, that incest or drug abuse isn’t as serious? or because there’s a greater likelihood that the person is connected to the decider in some way, a friend of a friend? (hawkins said the drug penalties are worse in the rural areas, which would strengthen the view that the dominant factor was how the people felt about particular offenses in particular areas) 



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February 11: class 11 legal processes

plea bargaining

whether a troublesome matter is actually taken into the legal system, or whether it gets plead out. depends on how people define the problems they suffer, how amenable they are to the law, how lawyers and police deal with these problems, sometimes screen them out, sometimes bring them in.


today we discuss what happens when officials decide a matter is so serious, newsworthy, public, or otherwise acting upon that it should be brought within the ambit of the formal legal system. what you will have seen in the literature is the prevalence not of the direct application of legal rules, but the prevalence of bargaining by lawyers and others. a substantial part of the justice system is not about doing justice, it has to do with making deals. the rules play a part, but only a refracted part.


when you get out into the cold hard world of legal practice, you won’t just be interpreting rules, but negotiating with the other side to arrive at a mutually determined, mutually satisfactory outcome.


emmelman article

based on study in 1980’s of private not for profit criminal defense attorneys in southern california. interviews while she was a law student and law clerk.


judges are encouraged to facilitate settlements, sometimes arbitrating when the parties couldn’t come up with an agreement on their own. negotiations took place throughout the life of the case, and bargaining could take place anywhere.


the main role of the defense attorney in a criminal case is to mitigate harm the defendant might suffer. trials are rare, cases are commonly settled, and plea bargaining can serve to reduce the docket and be in the best interests of the defendant. when an attorney is deciding whether or not to settle, three activities:


1.assessing offer for guilty plea

  1. seriousness of crime
  1. background of defendant, including criminal
  1. strength of evidence

lawyer from there determines whether plea bargain reduction is fair or reasonable. even if the prosecuting attorney gives a reasonable offer, the defense attorney might go further, there’s an understanding that the deals never get worse.

2. negotiating terms

if the offer is not better than average, the attorneys may engage in explicit bargaining, where the defendant’s lawyer will try to emphasise the prosecution’s weakness.

3. prosecuting and deciding on a course of action

decision with the client about whether to take plea bargain.

most common: lawyer and client agree on plea.

sometimes, lawyer wants to pursue, client wants to take plea, and vice versa.

attorney recommends plea bargaining, client wants trial.

last category, both attorney and client want to proceed further.


criticism

story telling, advocating for client. legal rules just the backdrop, with both sides reassessing and predicting what’s going to happen.


pretrial hearings: way of informally getting information across. like trying to get mitigating factors into probable cause hearing. it’s a way of showing your teeth, and how well you can advocate in court.


criticism mostly of stuff that’s left out.


defendant’s only threat is the threat to proceed further, but there’s also the ability to keep information secret, not roll on others.


different motives: prosecutor doesn’t want to send innocent person to jail, but defendant’s attorney doesn’t even want to know guilty status of defendant.


conclusion to plea bargaining or trial

author went to courthouse and observed trials. assessed plea bargaining. strength of prosecutor’s case and seriousness of case were the two major factors in whether a deal was made or not.


super serious cases more likely to hit trial: defendant lawyers think the penaly is huge, so why bother shooting for a slight reduction, whereas prosecutors think that serious cases need serious penalties.


prosecutors feel that lighter cases don’t deserve a whole lot of time.


maverick public defenders, high profile private attorneys. sometimes the latter will want to plea out a lot to collect a lot of fees, mavericks will go to trial out of self interest and not interest of client.


criticism

plea bargainin like a mchine, sorting and sifting people into categories. low profile small crime, high profile big crime, etc.


changing notions of winning. what constitutes a win? grand idea of the defense attorney: proving innocence. but the role is more about mitigating the sentence or the number of charges, those can be considered wins as well. sometimes guilt is presumed during the plea bargaining.


possible to have defendant take part in the process? public defenders have about 400 cases a year.


class attitude toward plea bargaining

defendants usually ask, “what’s the best deal i can get,” they like predictability. so the mechanization is valuable to a lot of people to know they’re being treated along the same lines as everything else.


defendants very concerned to know where they stand, and the machine does give them a very accurate idea.


people also own the settlement reached through plea bargaining.


repeat players (defendants) in the plea bargaining system know the rules the best and may be the best equipped to act independently.


anyone feel it’s a subversion of the criminal justice system? should we be applying the sentences prescribed by law in open court?


separation between presribed and actual penalties has a negative publicity effect, in that people in society actually have no idea what the penalties are for crimes.


case i saw: 300 pound man, 6 foot 6. i had a copy of the dossier the parole board was working from. i read the account of the offense. according to this he had been in a gang fight in brooklyn, and in the course of fighting, picked up a brick and hit his victim over the head, fractured victim’s skull, and killed him. what do you think he was convicted of. assault, second degree, punishable by zero to five years. and he was up at his first hearing. having only done a few months. now that is one of the reasons i use the word subversion.


second case involved a man who had raped a woman at knife point and made off with her bag and money and possessions. he was convicted of a low category of assault.


the third, immediately following this man, was a person who shot victim three times, the victim walked around with a bullet lodged in neck. he too was convicted of assault second degree, 0 to 5 years. these my reflect the province. new york was a tough town when i was there. may still be.


people tried to suppress publication of a book on plea bargaining. similarly, a tv program, a criminal justice chat show, and a man was discussing his case, andin the course of the interview, he had been encouraged to plead guilty in order to have some charges dropped. that was the first time we heard about plea bargaining. and then the next day, a judge said that plea bargaining does not exist, and if it does, you’re not supposed to talk about it. no question it goes on. 70% of cases in the magistrate courts go on guilty pleas. over 50% of crown court cases. guilty pleas are achieved because the pros has offered some kind of concession, but still there’s embarassment about it going on in this country.


frequent cut: 1/3 of sentence if you’re on the cusp. in the US, 95% of cases involve plea bargaining of one sort or another. it’s the routine way of deciding cases.


evidence of police overcharging practices in this country, because of expectation that a lot of the charges will be dropped, and they can give an impression to the prosecutor that the person is a nasty piece of work and needs to be nailed to the floor.


lots of unpredictability at trial: sentencing decision of judge, determination by jury. judge might have particular sentencing proclivities. you can avoid a judge by filing for adjournment.


listing clerks are quite powerful people (deciding who goes on which judge’s docket). study done on listing clerks about their practices. it became very clear to him that the listing clerks have very marked theories about crime and punishment. we all carry our own punitive baggage about which crimes are terrible and should be punished severely. and what he found was that the listing clerks would get to know the sentencing proclivities of the judges, they know that judge X will be very tough on drug dealers, Y will be tough on rapists and pedophiles and so on, and if a listing clerk came on a case they strongly disapproved of, they would list it with a judge who fitted their own views to make sure the defender would be punished very severely. the only control defense counsel has is to file an adjournment, and by buying time, judge X or Y won’t be hearing cases at the time. but that’s an example where repetitive decision mking can lead to settled expectations.


distinction between “normal” and “special” cases. bad cases, special circumstances. if a case was a normal case they would automatically follow a normal disposal. if A, then B. because the prosecutors and defenders were so well rehearsed they knew the routine normal agreement for this kind of case.


if you end up working in a jdx with a very punitive sentencing structure, you’ll find that it’s a major incentive for people to bargain, partly because they feel the maximum permissible punishments are far too high, and partly becasuse the lawyer or defendant don’t want to run the risk of a life sentence. however if the sentencing structure is an indeterminate one, and allows for the possibility of flexible release, a parole board, then your client’s going to be in trouble. the parole board will have the police’s version as well as the defendant’s version.


the parole board will not treat the defendant as though they committed the crime they plead to, but the crime they plead down from. so the benefits of plea bargaining will be illusory when a parole board is involved, beecause they’ll max out the sentence to the max of the flexible range. a 0-5 assault pleading for murder will instantly become 5 years because the parole board will know what happened. 


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February 12: legal processes class 12

friday of next week: court visit!d


we’ll leave the porter’s lodge at 9:00am. court starts at 10:00am. judge speaks to us at 9:30am. we’ll adjourn for lunch, then meet again at about 1:50. can’t do anything about crown court visit until next week, because they’re on a hand to mouth basis, they have no idea until 24 hours in advance what the next day’s calendar will be.


if things go to plan, magistrate in the morning and crown in the afternoon. crown typically sits at 2:00pm. expect to be there until 4:00pm.


“Respectable dress.” be fairly presentable. i regret to say i’ll wear a tie. i’ll be in a jacket and tie. they don’t appreciate baseball caps and similar americana.


pretrial deal making

you’ll have seen i hope that what’s important there is not so much the formal legal rules as the institutions and the personnel of law. you need to know about the other side, what they’re good at. as well as the judge, if you’re operating in a scene where sentencing is performed by the judiciary. you’ll need to know the proclivities of the judge. you need to know more than the law.


only if they’re innocent will they demand to go to trial. the material today moves into the civil sphere, mostly.


importance for lawyers of not just knowing the rules, but knowing the ropes the messy realities.


presentation

“what do clients want and what do lawyers do.”


to what extent should lawyers control their clients? we have a spectrum.


client controlled on the left side, lawyer controlled on the other side. the left side has the lawyer acting as a mere conduit. in the right side, the lawyer is driving the process for the client.


near the left is the participatory model, where the client has some input over the strategy and objectives, but the lawyer is still taking something of a driving role.


no formal rules or professional consensus about where lawyers should fall. three factors:

  1. nature of client
  1. practice area
  1. lawyer’s organizational culture or setting


the only group of lawyers consistently on the left side are corporate lawyers. at the other extreme are divorce lawyers and criminal defense lawyers. closer to the center, poverty, civil rights, and plaintiff lawyers. the stronger, richer, more sophisticated the client, the more to the left… they’ll be in a better position to control the case. the lawyer is also more likely to relate to the client in those situations. whereas with poor clients, the lawyer may feel the paternalistic need to take control.


it might not work to just plot the plaintiff type cases in the middle, since plaintiffs come from all socioeconomic backgrounds.


criticism

model leaves out some stuff. model rules of professional responsibility—she misses out on one aspect of those rules that makes the continuum more complex. not only are lawyers in a conrol struggle with the client, but they’re also in a struggle with the ethical duties they have to the public in general, which complicates the continuum. there are things the client has to decide, things the lawyer has to decide, and things the client can ask for that the lawyer isn’t allowed to do.


i don’t think she did a very good job of capturing that.


example of lawyer arm twisting client to do a plea agreement. that would show that criminal defendants don’t have a lot of power, but it also shows that the model rules aren’t effective.


my own experience is that there’s litigation and transactional corporate lawyers, and the transactional lawyers are all the way over to the client controlled side, but i’ve noticed that corporate litigation lawyers maintain a lot of control over the case.


final conclusion: she seems to be operating under the assumption that it’s possible to take a normative approach to this whole relationship, and my take on that is i just don’t know how you can, i don’t see how you’ll have rules that will always govern this relationship, it’s a response to a very complex social situation. although viewing it this way points out an important thing, which is that when there’s an imbalance of power and abuse of lawyer’s power, you can tell it’s because the client has no resources.


we’ve decided, in the US, to govern this relationship with a free market approach, that if the clinet doesn’t like the way the lawyer’s treating them they can get another one, unless you don’t have those resources.

presentation

formalism: what most of the legal actors would align themselves with. based on the fact that the supremacy of rules and the skilled lawyers will lead to justice and equity. but the skeptics are, well, skeptics. they were pushing lawyers to impress upon their clients that rule determinacy is an illusion, that rules don’t really determine the outcome, that legal actors are struggling in a broken system, or confused, or maybe serving their own political or economic ends.

if we get away from a formalistic understanding of law, it’ll reduce lawyer’s power. but lawyers may have anticipated the skeptics view and have adjusted their own stated values to this “knowing the ropes” busienss. so they say they have insider access, connections, reputation, etc. authors call that a fleeting sense of value. one thing that i did think was that in this posture, the lawyers are selling themselves on inconsistent access, they’ve divorced themselves from the interests of the legal system itself.

(critics assuming that legal actors pushing formalistic view, but then they find that lawyers are pushing the exact opposite)


criticism

what is the lawyers’ agenda? what happens if we overlay the second article over the spectrum of lawyer/client control? maybe we tell stories to our clients to maintain our power in the legal system. is that a power, if most lawyer client relationships are lawyer controlled? if our motives aren’t doing best for our client, but rather protecting our own professional value, should we have stronger ethical obligations to push the relationship toward more client control?


i thought the picture of lawyers and their clients was a little bit scary. i like to think of our profession as a service industry, we have clients after all. and if we have this vision of lawyers and clients opposed trying to get power, it makes me wonder what our agenda is, separate from the client’s agenda? what professional objectives would lead us to compete with our clients?


how many of you have sit in on lawyer client relationships?


you all know much more about lawyer client relationships, i’ve never done any work on the subject.


we hear about the grimey public defender, and the four piece suit corporate attorney, and we have vastly different accompanying images of the lawyer client relationship, and the level of paternalism taking place between them.


lots of arm twisting in public defender work. a lot of defendants don’t treat public defenders as real lawyers, because they’re getting them for free. or at least half of them anyway. very argumentative, you don’t know what you’re doing, a backlash.


two reasons why lawyer control not necessarily so bad. client doesn’t have time or money to make decisions.


charming beautiful blonde lawyer could get whatever she wanted out of anyone. other guy was feisty, not very political. he would way more often get pushed over the edge.


title of one article:

Q: did you have a lawyer

A: no, i had a public defender



evidence of fee systems: before our legal aid system was revised, if someone had a problem with involvement in the criminal law or had acivil claim, and they were sufficiently lacking in resources that they couldn’t pursue their claim, it was adjudged to be a valid claim, they could apply for legal aid, a state funded system. so that no one in theory was prevented from getting legal redress.


over the years, the legal aid bill got larger and larger. and by the time margaret thatcher came to power in 1979 it had already reached fairly significant levels, and she being a right of center politician, started nibbling away at the legal aid budget, and one of the thigns that was introduced was a cap on fees, but that still didn’t challenge the control that lawyers had over the amount they were charging to the state, because they would simply, if they wanted to make a comfortable living, they would simply drag the work out so they could put in a larger bill that way. if they were limited in the per hour rate, they worked more hours. one of the ways the gov’t adapted to that was introduce a franchising system, in which firms in an area were asked to bid for a certain amount of legal work per year for a fixed amount of money.


so firms would make a bid. an hourly charging world would be very different from a fixed fee basis, and that will impact the interactions you have with your client, and the nature of the relationship and control.


research student in the 70’s, wrote a book, “lawyer and client, who’s in charge,” he did the work here, although he was published in the states. been wearing a four piece suit on pennsylvania avenue in washington dc. the book is very interesting, he studied the fate of a whole series of personal injury cases, and discovered among other things that how successfully things were disposed of hinged substantially on the degree of specialism and expertise that the firm itself possessed. he found a clear correlation such that the generous law firm and the generous practitioner was less sucessful in winning liability and damages compared to lawyers who had some expertise in this field. he took this on right through to the specialist lawyers who did nothing but personal injuries and litigation, and found they were much more successful in terms of winning and the damages they recover. those kinds of lawyers run on pretty expensive fuel, i imagine, but i imagine they spend very much more time and i imagine more in control of the case because they can lay claims to specialism and expertise. if you’re an ordinary citizen in oxford, and you’re knocked over by an errant driver as you cross the road….


note a further point about the felsteiner serrat article, what is also going on in the lawyer client relationship is this translation function in the context of trial.


translating clients’ problems into terms that fit with the legal categories. interpreting the meaning of formal rules into ways ordinary folks can grasp.


next time, a piece not written by a lawyer, but by a sociologist. so i’ll see you wednesday of next week!

February 18: class 13 (Sam's notes)

Cases that wind up in jury trials - criminal

Usually big and bad acts- heinous crimes

Trials for civil matters

Claimants that want to be vindicated, have deep pockets, big powerful defendants who have a point to make or set a precedent, and big bad cases.

Often have a little something out of the ordinary about them

What does a sociologist have to say about the actions within a courtroom?

Roc observing what goes on in the crown court.

Trials that follow a disparate formula and ritual

Blackguarding - aggressive questioning to case doubt on the credibility of a witness

Virality

Each speaker has a distinct turn to speak and be uniterrupted

Nothing can be discrete or tacit

Emotion - tears and passivity

Seeking out meaning in minor behavior

No spontaneous flow of information - jury has to wait for judge

CRITIQUE - coaching is frowned upon by Roc, but it's a central element in any judicial case - it's nearly malpractice not to prepare your client.

Second Half

Points of the trial

Indictment

Contains offenses - counts - what the prosecution alleges D did

D can plea guilty not guilty to some or all

70% of criminal cases are plead out in crown court, Federal court sees 90% pleas.

Prosecution - lays out facts of case - especially what shows guilt.

Defense instructions - focuses on defenses of defendant and evidence.

If witness draws on experience, this allows the defense to poke holes in the statement. What you want is an individual who keeps to the statement they made to the police.

Good witness - witness that the prosecution can present as innocent

Clear measurable and honest in manner

Clear recollection

Don't appear too concise- you appear coached.

Defense has a standard system in critiquing witnesses, as do prosecutors. If it's dark, there is an automatic question on how someone can see the act or the actor.

Prosecution has a troubling problem in picking witnesses

They can bring a bad witness up whose background will be put under the microscope or they can deal with a case in which a witness is not present who has a critical element of the case available only through them.

The heirarchy in the courts involve barristers with a row of solicitors behind them. Barristers are legal advocates who may end up working for the prosecution one week and pleading a case for the defense the next. On the other hand, a crown prosecution solicitor will spend all of their time on one side as a prosecutor.

Court room diagram

Jury Box
Solicitor S Defense P R
Defendant Barristers C Judge
Solicitor S Prosecutor P U
Public Pulbic Witness box
Reporters Reporters

Need a minimum of 10 jurors. Want 12 usually.

Note the distance between the witness box and the jury box

Note that the defense attorney is far removed from the defendant (requiring the defendant to attract the attention of the defendant, the solicitor then bringing the message to the barrister.

Also note that the jury box observes the defense council directly.

February 19: class 14

class fifteen normally scheduled for next week, but we’ll put that back on thursday. you’ll then go off on spring break. court visit will be wednesday (i’ll be in NZ). make up class will be on the tuesday after we return.


9:00 sharp on wednesday morning of next week. no cameras. get ready for metal detectors and airport type stuff.


sequence or decision stages. you’ll have gotten a hint at how decisions are made, and the forces behind which matters are disposed of. but what are the detail questions? what details inform the actors’ choices? we’ll be dealing with some of the forces that actually compel legal discretion to be exercised in particular ways. we’ll see that legal rules are only one of a series of forces acting upon legal officials.


i’ll continue that theme after we’ve had the two presentations.


presentations!

the surround: political, economic, social situation.


book speaks directly to political and economic. political: depending on whether there’s a conservative or liberal gov’t, there’s more or less intervention. in the conservative gov’t, accountability goes up. on the other hand, when the labor gov’t came in in the late eighties, they wanted more enforcement. the deregulation unit became the better regulation unit.


during bad economic times, safety takes a back seat, because companies become super aware of lowering costs. inspectors realize the need to become more lenient because of the times. so instead of actual prosecution, which feels like an encroachment, there’s something else.


on the other hand, during economic recovery, safety concerns are still not quite present—there are start-up companies that don’t have the experience or finances to impose safety standards. also during economic recovery, industries become fragmented, making it hard for the HSE to monitor and control safety violations.


prosperity, visibility, transience.


construction companies seem to be a lot more difficult to regulate. in terms of prosperity, construction becomes really competitive in times of recession. but if there are prosperous times, the amount of construction work rises and there are still a lot of injuries.


visibility: construction stuff is out in the open. whereas in chemical firms, violations are not so obvious. they rely on employees to tell them of dangerous activity.


instability: size of the compny, control factors. larger companies tend to have resources to comply with regulations whereas smaller companies do not. so larger companies may be held to a stricter standard. it’s harder to control construction sites because the sites are usually large and the managers are working on the project as well, and there’s fragmentation with subcontractors. whereas with chemical firms it’s all centralized.


also the relationship between the inspectors and contruction managers/chemical firms different. inspectors treat construction managers as cowboys, and checmical firm managers as literate and educated.


transience: because construction sites and safety risks change as construction goes on (danger of falling into a hole will be something different when hole is filled) so as contruction progresses there’s not one overall safeguard that can be put in place. but with chemical firms, the machines will continue to be around years from now, so you can set down certain safeguards that will apply to all of them.


criticism of 1

chemical industry might be more dangerous because of the gravity of harm that can result. so although construction might be a harder problem to catch, chemical violations could have catastrophic results.


economy: seems to be a damned if you do damned if you don’t situation. if there’s more growth, there’s more companies, more fragmentation. in times of recession, not enough money to implement safety standards.


inspectors associate construction with prosecution, because they’re almost only called in in the first place for injuries and thus cases that need to be prosecuted. so inspections might be more severe, self fulfilling prophecy type of deal.



two views: employer responsible for good environment vs. employee should pay attention to environment. act took former approach. legislation creating HSE.


working with the EU: you can work with the EU and know that the EU won’t create conflicting policy, or you can go on your own and hope for the best.


return…

rapist who had done many years in prison up for parole. year before parole hearing, there had been a particularly brutal rape that got a lot of publicity. had nothing to do with this man. so this was actually data coming from completely outside this case. did the bull take it into account? yes they did! the public is very concerned about this issue, and doesn’t want rapists released.


another example. 9/11. lovely example of how some huge event occurring in the surround of a decision maker can completely alter the way a decision maker views things in the future. results in department of homeland security, prompted entirely by that event. ramifies down to individual decision makers, sitting in glass cases at o-hare wondering who should get in. the way the INS official interacts with me has certainly changed since 9/11. all of that is stuff that’s happened in the surround of legal decision makers. effects both law making and individual decisions.


when irish terrorists in 1983 loaded a car with explosives and parked it outside harrods in nightsbridge. car exploded, killed 14 people. hard to imagine the metropolitan police didn’t change their attitudes about policing. affects day to day discretion of individual decision maker.


for health and safety, these may be three mile island, and chernobyl. for years we weren’t able to eat lamb from north wales because the radioactive pollution from chernobyl, because of the curious air flow, a great slug of radioactive air traveled northwest, over scandinavia, and down over north wales. the grass in north wales is still radioactive and lamb from there still prohibited. the field is the next stage.


the speakers discussed what in the book i called the local surround. i discussed the politics and the economics and how they come into the equation. and both speakers picked up on the fact that depending on the hue of the party in power, there can be effects on regulatory agencies. you don’t need a policy to effect a change in government. just the broad policy of the government in power can affect the way an individual reguator behaves. i came across a number of inspectors who said they went easier on rule breakers under margaret thatcher, because they knew the thatcher gov’t would be upset about a lot of cases brought against struggling businesses.


i expect the british officials are harder on immigration these days because of fears on the impact of unregulated labor in times of great unemployment.


broad social, political, economic context for discretionary decisions. so be careful when you hear explanations where the particulr unit of analysis is only the particular case.


so i’ll see you at 9;00 at the porter’s lodge wednesday. if a problem i’ll e-mail heald.



as soon as you categorize a case as normal, it’s dealth with in the typical fashion according to the rubric. only when a case is categorized as non-normal do they make a complex, thought out decision. resource reasons may dictate this. at the INS border, 98% of cases are normal.


when working on british osha book, i asked about “the kinds of case” where he would expect prosecution. in automatic fashion, he reeled off a list. big accident, repetitive behavior of a serious sort, potential for adverse publicity, where deterrent impact is necessary, and when someone is hit by an overhead traveling crane. why put something so specific and banal in that general list? it was clear that this was a particular working category in the region and for his office. if the field inspector came across a case where “a worker has been hit by an overhead traveling crane” it is categorized as “prosecute.” i asked “why?” “i suppose because we’ve always done it. we’ve always had this working category.”

if you’re a prosecutor working with a jury, you might try to draw attention to where the person lives, other seemingly innocuous things to push the jury to put the defendant in a particular category.

how can you possibly control these discretionary processes?

February 26 (Sam's notes)

New Slang

Crown Court Visit - Will try to visit Wednesday, March 18

Is there any difference for someone from an EU country and someone outside when dealing in UK courts. It would seem that no, there is not from what we saw yesterday. Keep in mind that the UK system is a common law country, as opposed to most of Europe - Civil law states.

Duty solicitor - public defender. There to help anyone that comes in after recently being introduced to them.

Relationship between lawyers and the legally trained clerk of the court

Clerk is in charge in many ways of the court. She conducts much of the business of the court, from the law to when to have a defendant sit or stand. This is a position of relatively high control within the magistrate's court.

Because the Magistrates are required to give up a day of work every few weeks, the distribution of backgrounds is seriously skewed towards middle and upper class and often retired.

Age restrictions - not much in lower boundaries, but there is a self-selecting characteristic in the profession. Upper boundary is 70 years old. Youngest Hawkins knows of is 29 year old in Oxford.

Newton Hearing - where people will plead guilty, but have a mini-trial to determine facts on which they are willing to plead guilty.

Part of the purpose is to get a matter quickly resolved. Just investigate a particular point of dispute, having taken for granted the plea of guilt, with the dispute resting on whether certain action or behavior took place.

Mandatory Sentencing Guidelines

Done in part to limit the amount of power held by magistrates. There has been some movement towards expanding the number of months that a Magistrate court can sentence a defendant, but that has hit many roadblocks, perhaps because there prison population in the UK is relatively high.

Presumption against remanding people in custory

One principle - Is there a risk that a person will not present themeselves at trial

Second - risk that they will tamper with the evidence, wtinesses or otherwise tampering

Third - May they cause some harm to society if out of jail?

Anil

Lower level indiviauls influence and have more control over the system, than the person who is high up and created the guidelines.

Because lower level people have such discretion, they may be able to undermine the authority of these laws.

With such discretion, a magistrate for example can manipulate the purpose of the law, as opposed to running through the check box system of whether defendant X took measures A,B and C when committing crime W.

Critique

Talks about how workers try to limit harm, while managers want to increase productivity. Managers thus focus on productivity, while street level beauracrats are trying to secure authority and control at the local level.

Parties have both mutual dependence on one another, but at the same time, have contrary interests in terms of their control and authority.

Jamie

Constraints on decision making

Consistency in policy does not mean uniformity - just applying similar policy to similar issues.

Influence of field directors on field inspectors - not because of what they tell them to examine, but because inspectors know that what these directors emphasize are important

Those in the center of an organization have little way of knowing how field workers will act as a result of common policies.

Inspectors are vulnerable to pressures that higher authority is not susceptible to.

For directors - risks are very theoretical, but for the field worker, these issues are direclty problematic.

Points raised by Hawkins

Law is increasingly bound up with organizational life. Huge areas of public life controlled by law through organizations- thus very important to understand legal system in understanding what law actually looks like.

It becomes increasingly impossible to write rules for all sorts of economic business activity - there I so much going on which heightened complications.

Legislature used to write instructions to the people, know it writes to administrators.

Legal ideas become distorted as they travel down the levels of the organization - has to do with the structure of the organization - only the most junior levels come into contact with the problems that the law seeks to do something about. It is here that you find the high levels of autonomy that Lipski talks about.

Policies are often the product of the upper echelons in an attempt to control those at lower levels of authority.

Yet there is often a grand amount of autonomy at the lower levels which allows these lower level workers to go about their day to day activities with little regard of the law applied to them by their superiors.

This can lead to behavior direclty contrary to the rules of the organization.

Don't want to sanction someone where there have been no injuries, though the law requires such action.

Human agents at the lolwer level are more concerned with the behavior of individuals, than that of the organization's governing body and its authoritative statements.

Conception of the world at the ground level is different from management

Management - organizing office, and dealing with public officials

Ground level - dealing with people who have perhaps been harmed within the workplace

DISTINCTION - what drives these two different groups is highly opposed to one another.

Central body - Legal Authority

Ground level - Legal power

The two are very different, and central to much of Hawkins' writings.

March 12, 2009

one piece of housekeeping. got confirmation about crown court. visit next wednesday is on. i’ll be teaching you as normal at eleven.

i’ll meet you at 1:25pm SHARP. same level of security as at magistrate court. no cameras. avoid metallic objects. etc.

the relevance of organizations

organizations are pervazive. st. anne’s is an organization. law firms are organizations. oxford college. the health and safety executive. EPA. OSHA. the police.

the point of today’s readings is the interaction between the invidual members and the organization. the members will put out signals about how good workers they are. the organization will push on the worker formal goals. the organization is in an environment: the public, the media, other organizations with an interest in what it does. it responds to those pressures and interests. and the organization in turn tries to give out signals to the environment about its work and efforts and activities.

irish terrorists planted a bomb in birmingham and killed 24 people. because it was a terrorist event on the mainland it caused enormous outrage and put enormous pressure on the police to be seen to be doing something. and the way the police responded was to put enormous expectations on the policing staff to “do something”. and doing something meant getting the perpetrators. and they weren’t too careful in who they tried to nail. they rounded up males with irish accents. one couldn’t come up with a more charitable conclusion. six irishmen were arrested, charged, prosecuted, tried, convicted, and sentenced to life imprisonment. they protested their innocence, and despite suspicious signs, like them turning up in court with their faces black and blue, such was the media panic and public pressure that people didn’t pay as much attention to this or the evidence as they should have. they appealed, and lost on appeal. more evidence was produced over the years to suggest that the police had gotten the wrong people. they appealed again, again lost. finally the evidence built up to the point that a retrial was ordered, and finally on the third retrial, evidence was produced to show how the police had falsified their notes of interrogations and other evidence as well to point to the guilt of the accused. all of that happened because there was public and media pressure, such that the organization felt that it had to act.

organization led to satisfy the interests it construes from the public.

alice, chapter ten of law as lest resort.

the audience of the organization and how that influences investigators not necessarily over the specific merits but the obligations they feel they have within the organization.

influencing factors:

quotas: used my senior staff to evaluate junior staff.

resources: expectations about the need to prosecutie conflict with organization limits when prosecutions take up an inordinate amount of resources

organizational expectations: questions arise when quotas not met. seniors ask if organization expectations are being met through different means.

prosecutions have a diminishing rate of return. appearance of enforcement doesn’t increase as much with each subsequent prosecution.

judging each case on its merits definitely a fiction.

organizational horizons and complaint filing.

scenic horizon: stable features of the background that might change in the long term

temporal horizon: changing nature of problem and what actor can guess about past and future

manipulative horizon: what actor can do in given situation

street based horizon: what cop can see on the street

cop in police report may anticipate evidentiary problems. cop also investigates likely punishment, sentence, etc in report, and decision whether to arrest/pursue.

why are cases deemed “good” or “bad”?

problematic: prosecutors will sometimes lock someone up even with no intention to prosecute.

people i meet in america know police have quotas and the police know where to go to catch drunk drivers, see people running red lights, etc. general perception that at the end of the month you’re in the greatest danger.

i noticed inspectors pretended there were quotas when there really were no quotas.

the point about police becoming more active at the end of the month certainly rings true.

quotas reflect perhaps disturbing sense of managerialism. universities in this country now subject to performance indicators.

RAE: research assessment exercise. series of assessments of performance of every single department in every single university. its national and international standing. terribly important, because money is allocated based on how they peform in the RAE. it’s an alice in wonderland scheme, the better you do, the more money you get. the institutions that don’t do well because they don’t have resources are starved in resources. and the universities doing well continue to do even better.

inspectors might be fearful of losing a case—they think if they lose, they’ll be seen as failing, and that will damage their chance of promotion. even if there’s a good reason for the case to lose. you can see immediately when they have that mindset is that when screening cases they’ll only pick out the slam dunks. the ones that are easy to prosecute. a case that is legally easy to prosecute is not necessarily a good case for the organization to prosecute. if your goal is to advance the health and safety at work of people, that’s not the same as prosecuting just those cases that have lots of good, easy evidence. that leads to a very pernicious effect in the way inspectors scope out cases. you can see how an organization thus distorts and blunts the organizations effective legal mandate. performance indicators and quotas are of course tied up together.

note that quotas coexist with resource constraints. now if you think of a quota, real or imagined, it’s an organization device to push people toward being more active. organizations want their members to display legal activity up to a point, it shows that the organization is doing its job.

chemical investigations: difficult to get the evidence, but dangers of chemical spills can be catastrophic. but because they expect chemicalorganizations to be compliant, they don’t require a lot of prosecutions.

construction companies, with high safety compliance costs, have lots of accidents, and regional managers respond by expecting field inspectors to produce far more prosecutions a year. note you have to strike a balance. you don’t want too many prosecutions. A) for resource reasons. don’t want inspectors tied up in court too frequently. in a prosecution, they’ll expend five times more than they would if they just gave a notice. so there are major resource constraints to depress prosecutions. but there’s another important reason. B) that’s an organizational desire to be seen to be reasonable. constituents don’t want regulatory agencies making industry uncompetitive.

on the other hand, there are people who want more legal activity. a cleaner environment. safer workplaces. a regulatory agency is caught between these two publics.

i encountered an inspector who had a bad rep among his colleagues because he so zealously prosecuted anyone who polluted the river thames. so individual inspectors need to pick on good cases.

caseload effects. terribly important in organizational decision making. caseload effect only occurs because a person is a member of an organization. two important sorts of caseload effects that you need to know about. imagine you’re refereeing a soccer game. and someone in a red shirt is tackling someone in a blue shirt. and it happens in the first five minutes of the game. you’re faced with a caseload effect problem. do you show a yellow card that early in the game? or not? what would you do if it was a bad challenge?

you could do a bit of bluffing, grab the card but not pull it out. why wouldn’t you pull it out? spectators might feel like game losing flow early on. so your tolerance of rule breaking varies over a period of time depending on where over the period of time you exercise your discretion. this is the caseload effect where you’re dealing with a sequence or potential sequence of cases, and you have a judgment to make when you encounter a piece of law breaking, whether you do with that particular sequence.

in the last world cup there were 9 on 8 yellow cards; if you set an early perception of enforcement, you have to follow it through to avoid being seen as unfair. that’s the partial caseload effect.

another example of sequencing. the school teacher goes into the classroom, and a particularly naughty boy starts kicking up very early on, she’s supposed to do something to discipline him very early on to lay down a marker so there will be an impact on the potential sequence of later cases.

will it spoil the game if a yellow card comes in the beginning? if there’s an uneven number of players?

if you have five to six cases on your desk which you’ve already started preparing, you don’t want another. so your reaction threshold is moved up. this was a constuction inspector, used to having lots of potential prosecution. so if you see another one, it has to be really bad for you to do anything about it.

school teacher: one thing we were taught was to be extremely consistent. if you punish one you have to punish all. but you couldn’t discipline everyone who deserved it. you wouldn’t be able to teach the lesson.

randomness over when i would snap became an effective system.

40,000 people die each year from occupation induced disease. very hard to come up with a meaningful statistic because estalbishing causal relationship is difficult. between 300 and 400 people die each year in industrial accidents. how many prosecutions for accidents or breaches of safety regulation? 1800. how many prosecutions for some rule breaking connected with ill health? about 6. why? because the inspectors find the legal rules about regulation of occupational health matters much more difficult to work, enforce, than the legal rules relating to accidents, where the evidence is easier to get. pernicious effect of demanding that prosecutions lead to convictions.

march 18

see you all at 1:25 sharp outside the crown court. pass christ church, intersection, crown court entrance on right. on left is inspector morse’s police station. don’t bring laptops to crown court.


not sure when we’ll adjourn. 4:00? 5:00?


organization’s effects on its members

an officer or inspector with a real or imagined quota who hasn’t met that quota of cases will go out and look for some.


members and organizations at large work to blunt criticism of their performance.


we also see examples of members enforcing the view of the organization at large… we see law functioning as a communicative device, messages being communicated to audiences. the question for the legal official is not “what is just” or “what is the legally right thing to do” but rather “how is the organization going to look if i do this,” and more important, “how is the organization going to look if i don’t do this?” organizations like to be well thought of. we all like to put our best sides forward. they always like to be seen to be doing what they think their audiences expect of them. but remember this concern with appearances is significant also, because we’re talking really about appearances in public, and where the matter becomes public, it becomes public when the matter reaches the courtroom. remember that most of the area where discretion is exercised is outside of the courtroom.


final point again, we’re talking about the selective use of organizations. organizations are concerned not only with the number of prosecutions, but the type of prosecutions. the bosses are concerned that the lower inspectors take the “good” prosecutions, those fitting with the organization’s best interests.


chapter 7 of law as last resort. how prosecution is used as a communicative device. it’s not only a one way street, it’s that they know how the public is going to take the message they’re trying to send, which effects the case they’re trying to prosecute.


chapter addresses the actual audiences. wide range: public, media, industries. message isn’t just about what the rules are, but a message about the organization itself, why the agency is important, what the role of the organization is, etc.


example: workers were cavalier in front of the inspector, and prosecution decision made in part because of how cavalier the workers were.


three particular symbols: commensurability (you get the right guy, and there’s the right level of punishment considering the level of harm). “we’re acting justly.”

consistency: “we are even handed.”

accountability: “we work for the public.”





does it bother you that legal processes are used in this way? as publicity devices if you like? is that acceptable? is it inevitable?

  • if you’re interested in general deterrence, it’s not so bad.


note that general deterrence collides with commensurability. you pick a particular case because it has aspects that give it publicity. if you administer a punishment for the purpose of general deterrence, then you’re by definition not being even handed. one assumes that bernie madoff will be punished in a disproportionate way not just because of the scale of his wrongdoing but because the court will want to communicate that people placed in a position of trust who abuse that trust will get punished.

  • counter argument: maybe the people who get a lot of publicity are more morally culpable, maybe that’s why they got the publicity in the first place.
  • another counter: does it have to be a disproportionate punishment to function as a general deterrence? “if it’s a typical punishment, people won’t take notice.”


problem in the 1970’s of people vandalizing phone boxes. some young man in birmingham was caught having just vandalized a phone box. he was a first offender. the court took a dim view, and because there was a lot of this behavior going on, he got several years of imprisonment. it was an eggregioiusly long sentence, clearly done because it wanted to send a message.

  • did the vandalism abate after that?
    • yes it did. but what does that tell you? the lawyers and judges jumped to the conclusion that general deterrence works. but there’s a problem plotting cause and effect. in this particular case, the phone companies had also changed their boxes to make them harder to vandalize. so the answer is, we don’t know.


with utilitarian approach, or instumental approach, the punishment you impose is crafted to achieve some practical end, usually a reduction in crime. so when the judge handed down the harsh phone vandalism sentence, he was trying to depress crime. so one person was sacrificed so that people who hadn’t yet committed crimes but would consider it would decide not to. you can contrast that with moral or expressive legal processes. where decisions are not made to achieve a practical end, but to express some fundamental value. the ideas of symbolism attach to expressive views of law… imagery attaches to the ideas of utilitarian views of the law. proportionality, the idea that the punishment fits the crime—these are expressive, moral views.


if i steal grant’s tie, i shouldn’t be punished as heavily as if i stole his laptop, or punched him on the nose and stole his laptop. why should these be punished more heavily? suppose i’m given information to suggest that the offender isn’t going to commit any more further offenses, so i have no need to restrain criminality, would we acquit? no. why?


it seems not right that if you do something wrong, you don’t get punished for it. this is the principle of retaliatory retribution. why is that the right thing to do? especially when we know the offender isn’t going to commit further offenses? ultimately we justify it by some value that if you do wrong, you expect to be punished. it’s what we’re socialized into. it’s what we believe. note that the utilitarian theorist doesn’t reason in this way. (economics rationality can fit into utilitarianism. as well as expressive. if an offender isn’t going to commit another offense regardless, then the economist has to consider whether this is the cheapest way to depress crime.)


two people break into warehouse, one repeat offender, another first offender. seattle. first offender got five years, repeat offender got one year. commensurability problem: seems very inconsistent. why should two people in the same criminal transaction get such different punishments?


reason for the five year term: the chairman of the prison board felt that the first termer had psychological problems and needed treatment in the state reformatory.


purposes and functions: when a judge hands down a punishment because a crime is nasty and the judge is morally indignant, there might be a general deterrent effect, but that’s not the judge’s reason for sentencing the person. the reason is morality.


march 19

first discuss the court visit.


the dock with defendants. they’re required to be there every day. even if they’re on bail.


counsel intervene much less frequently in the UK than in the US. you might be struck by the amicable relations between the prosecution and the defense; they frequently sort out a lot of differences beforehand. i’ve never sat in on crown court and seen a remotely hostile encounter.


frequent complaint from convicted prisoners in UK: it’s an old boys network and the defense attorney was too friendly with the prosecutors and them and the judge all go out for drinks afterward.


trials in theUK: now less about what happened, but the interpretation of what happened on the CCTV video feed. CCTV functioning less as a deterrent and more as an evidentiary function.


nobody could make anything of the CCTV footage. that’s a guy in a brown hat. that guy has a bandage on his hand.


magistrate convicts about 80%, crown court about two thirds of the time. but crown court takes longer.


SAM’s presentation!


The issue or morals. one can never be objective. no clearly delineated points when you can be sure the law will be applied. violation of the law sometimes only results in prosecution when there’s death, serious accident, publicity, etc. the agents of the law always applying their own moral code, or the organization’s moral code, or the perceived society’s moral code.


we might see the breakdown of purposeful, knowing, reckless, and negligent—if something is characterized as “accidental” as in a freak incident. sometimes blame is deflected onto the victim. perhaps the victim was well-informed and capable. was the violation “flagrant?”


nick: if you only prosecute when there’s an appearance of moral culpability, will there ever be a prosecution? what does the culpability scale look like in the OSHA-type world? is there an “evil motive”? a desire to save money by cutting safety regulations?

  • nick: why is an economic decision being characterized by evil, but stupidity that causes an accident isn’t? isn’t the totally unnecessary accident worse? why assign moral culpability to the people who are at least saving money?
    • my theory: perhaps because it injures the competitors—if you don’t enforce the safety rules that cost businesses money, they’ll all move to cut the safety measure to save cash. so it’s not really about an evil motive, it’s about the utilitarian nature of the action.


so employers: pretend that safety violations are not because of attempts to save money. clean record helps, so does evidence that accident not indicative of attitude toward health and safety of employees.


criminal law mentality: only prosecute the safety violations that result in bad injuries. kind of like the difference between murder and attempted murder—why prosecute one more than the other?


inspectors might be harsher on walmart or equivalents—perception of a big evil corporation, also the idea that the big corporation has enough money to pay for safety measures.


characteristics of the victim also relevant: if the victim is young, an eighteen year old, expect a harsher reaction from the agency. as would be if a member of the general public is injured rather than an employee.


correction of behavior through law. punishmenet as just desserts, or punishment as corrective medium? is the penalty for punishment or to bring people back into equilibrium?

morals vs. appearance of morals. justice is far more arbitrary in these cases than i’d like to believe. not much of a standard for wrongdoing. there were situations where a guy died and that was ok, and where a guy was injured and it was prosecuted. hard to see the moral reason that differentiated the two. there was the issue of the appropriate attitude—if you were too responsive to the penalty, it suggests that you could have fixed it earlier—but if you’re too slow, then you’re failing to comply—both extremes suggest you aren’t concerned with peoples’ safety.


you’ve all leraned criminal law. what were the american rationales for strict liability?


if you wish to prosecute organizations, you have to make life as easy for yourself as you can. interesting to see how strict liability provisions actually play out—you can see how the human element mediates the force of the law. the law is concerned with breaches, but the enforcers seem only concerned with outcomes. and when there’s a particularly bad outcome.


every case i encountered that were prosecuted in one organization all seemed to have some mens rea component, some malice, wilful or otherwise. so even though these are strict liability crimes, the enforcers still looked for a mens rea. the law is quite clear that mens rea isn’t necessary.


it was a strict liability crime to pollute the watercourse, and vandals broke in and switched pumps off and caused tanks to overflow and polluting the watercourse. the company was charged with discharging the pollutants into the watercourse. they pleaded not guilty, and they were convicted, and it went all the way up to the house of lords, and the house of lords held them not guilty. they were responsible for the tanks and that was that. that strikes me as a pretty strict construction of the concept of strict liability.


but agencies still look for mens rea. one time the river thames got a 30 mile chromate slog. water uptake operations had to be shut down for a week. it was prosecuted as a “big” case. the water authority elected to have it tried in the crown court. you get more publicity bang for your buck when you go to crown court. i saw it. the company turned up and pleaded not guilty on the grounds that they hadn’t caused the pollution. they had caused the pollution when their employee turned the tap on—the fact that it was routed wrongly by independent contractors was completely irrelevant. company changed its plea, got a substantial fine. the water authority was happy that BBC cameras were in place along the river thames and that their cause would be furthered by the prosecution. but the water authority went on to say that they “must have known” the pipe was wrongly connected, that they were just trying to get rid of the chromate as quickly as possible. even there they were trying to come up with some idea of blame. when you think of blaming, you always particularize the issue. you’re thinking about a person who might have caused a disreputable act. so perhaps you’re deflecting from the real seat of the problem-there may be something systemic about the way people are required to work in a factory that puts them all at risk.

if the guard had been disabled so a worker could work more quickly

March 25 (Sam's notes)

Biggest impact on prosecution was not on the behavior of the people whom prosecution is supposed to impact, but rather on the schedule and routines of the prosecutors.

Think about the implications of personal intersts and organizational purpose in the making and creation of law.

Under certain conditions, it is a thoughtful and reflective process, but other times it is a routine, repetitive set of practices where people do things because that is what you normally do - that's the way it is. There is no reflection on you actions - Axiomatically.

Ideas effect policy

If a director at health and safety feels there are too many cowboys, he might produce a crackdown on enforcement procedures.

Must decide what punishment to inflict, and that will depend on the judge's theories on human behavior. And whether the judge believes in free will or determinism.

Judge has a theory as to what caused the particular crime in the particular case, which has an impact on free will and determinism - based on judge's theorizing.

Recipe knowledge - so long as you tick a small number of boxes, that's it. Judge here is in a difficult position. There is time in which a judge can remand an offender while thinking about various alternatives.

Nicki

Enforcement and Punishment

Inspectors want confirmation, but compliance is not absolute. Even compliant companies will not be perfectly compliant, nor is it expected.

Inspectors have no one unified theory of what compliance looks like.

For enforcer's theory of compliance

  1. Principal
  2. Instrumental
  3. Self-interest
  4. Custom

How an inspector fits a firm into these four categories will determine how the regulation is enforced

Principal - morality people comply for duty

Instrumental - money issue. Sometimes time consuming and costly

SelfInterest - to preserve a company, you may have to comply

Custom - normal response when it becomes custom

Non-compliance theories

  1. Mismanagement
  2. Culture
  3. Self interested calcultor

Self-interested calcultor - may not comply due to manager's time

Mismanagement - some firms are poorly organized or ignorant

Culture - Some firms may just reject legal authority in general and not comply with anything enforced by law.

Why firms behave the way they do

Larger the firm, larger the risk in industry - inspector will likely visit more frequently than a smaller site.

If labled as a good firm, their violations are seen as accidents or oversights - size, type of business and business contact all matter.

Inspectors - idea of local deterrence. If high incident of an accident, there may be an interest in limiting that harm through more proactive measures.

Manufactured appearance on both sides

Firms show willingness to comply

Inspectors show willingness to enforce

Critique from Ashley

Employees may be the reason for corners being cut. Management can send mixed messages about what is important to the company.

Seems there is no uniform punishment - it depends on character of company, history, size, etc. Firms are not quite sure what to expect in prosecution.

Ashley - study of detectives and how they process

Various methods to prosecute

Typification - specific patterns lead to specific plead bargaining systems

Categorizing cases makes pursuit of case easier and uniform

However, each case is not pursue uniformly - detectives do draw from personal interaction to determine categorizing.

Means placing case as routine or non-routine

No formal guidelines on how much time to spend on case, but organizational guidelines restrict behavior to a degree due to the requirements of paperwork, including analysis of case and all steps involved in the pursuit of the case.

3 aspects

How identifiable perpetrators are - do parties know each other? If not, more rigorous investigation

Social characteristics of victim - more or less likely to involve prosecution

Settings involved in the incident - may involve the specifics of the case, and the following pursuit by officers.

Is a quick arrest possible? If non-productive, the case will be put on hold.

In cases like rape, there is less of a barrier because the victim can ID the assailant.

Critique - Nikki

Nikki finds this study troubling. Ironic.

Culture making certain behavior normal or unusual. Hillbillies fighting is routine. The rich coming to blows is far less common.

Why should we be troubled by the behavior?

You do not want to think about the justice system as being efficient. But of course, that's almost a necessity. There's likely no way to get everyone off the streets, or pursue every case that comes across the table.

People may think of the legal process as above human behavior, but humans form the basis of the legal system - there's almost no means to escape this reality. Laws of, for, by and applied, by man are likely to have human failings.

Lack of fit between our noble conceptions of how we want the law to fit and the ideas of even handedness. Yet we look at realities and see lots of moral, economic, and political purposes for the reasons why people act the way they do.

Stereotyping

"stereotypes, profiles and probabilities" book on the human tendancy towards typification

Argues that it is not all bad. It CAN be useful - it is an order making process. A means of making sense of what we experience. Whether it is good or right depends on whether the stereotype is accurate or not.

Careful with Stereotyping and typification - brings baggage regarding the person and possibly prompts a specific legal response.

Must distinguish from the broad framing that everyone goes through in making sense of things. We are all different, and it is one thing to carry around a baggage of unexplored assumptions, to having a world view which we all have as well.

Some of our perceptions are solidified, while others are movable.

For tomorrow - Wagel focused his staff on cases that were solvable. Tended to turn attention there. Tomorrow we see where the legal rules come into play, and a similar rule focusing on regulatory inspectors.

march 26

you could be forgiven for thinking that the form of legal rules don’t make much of a difference. legal sociologists were promoting this view.

social scientists were guilty of thinking that the law didn’t work its way into the mind of legal officials at all.

we focused in this class mainly on criminal and regulatory law because that’s where the work has been done.

when it comes to doing negotiating, one of the main bargaining chips is the law. the law: predictions of what the courts will do. back to the arena of judgment. predictive judgment. assumptions. we’re opening the way again to the play of human decision making.

nothing clear and unproblem

we saw from paper yesterday, that detectives made decisions not according to whether it was a “good” case, but whether it was solveable.

fear of losing. the inspectors prosecute the cases themselves in person. only 10% of the time do they get solicitors. so the inspector treats the case like a piece of personal property, and nobody likes to lose because nobody wants a black mark. but having said that, i would be very surprised were the fear of losing not to be a major feature in other areas of legal life as well. i would suspect that most prosecutors would not be happy going to court if they thought they had a really good chance that they would lose. unless there are compelling reasons to do otherwise.

situations where the legal frame is broken. situations where they set the legal restrictions aside. tend to be cases of great notoriety or great moral failure.

the ferry that tried to sail with its bow doors open. in belgium. crossing channel between UK and Belgium. 1989 ferry moored waiting to sail to dover. the ferry puts its tail into the port, the bow doors open up, and the cars and lorries drive off. the heralder free enterprise was loading up the traffic. they finished the loading process. normally they would close the bow doors and set sail for dover. but the bow guy had been working so much overtime that he was exhausted and he was asleep in his bunk. the captain was on the bridge, and the design of the ship prevented people on the bridge from seeing the bow doors. the ferry set sail. it got through the calm water, and then waves lapped over the bow, and then within 90 seconds, enough water got into the hull that the ferry capsized. nearly 300 people died. very serious accident.

all of the captains of the PNO boats had,nine months before, asked the directors of the company if they could install warning lights so the captains would know when the bow doors were open and closed. company had said no because it was too expensive. this chain of unfortunate events led to a horrible accident.

the law that was in force at the time (since been rewritten) required that for a company to be convicted of corporate manslaughter, a controlling mind had to be located. i think the legal frame was broken in the sense that the prosecution was so concerned with the public position of the organization that it had to be seen as taking action, come what may. they must have had a sense that the prosecution was doomed to failure.

they didn’t get very far before the judge threw the case out. that seemed like a case where everyone legally involved realized what was going to happen, but the case was so big they felt constrained to take it.

so the first instinct is to look for cases that will produce guilty pleas.

so they consider evidence, persuasiveness of witnesses. my perception of environmental and safety organizations, i feel they have to be pretty secure that they are going to win.

perverse effect: certain kinds of activity, event, and industry tend to be targeted because they produce the prosecutable cases. so chemical industry avoids cases, construction company gets hit with them. dangers in chemical company much less obvious. dangers in construction site open for all to see, even to members of the public who know what they’re talking about. chemicals work perceived by inspectors as “compliant, good industries anyway” because it’s believed they have a strong interest in doing things properly, because if they screw up, there could be a big bang. this might not be true. mention “flixbra” to inspectors and they’ll get anxiety.

ICI ran a chemical building that literally exploded, killing 46 people, destroying everything for five miles.

enforcement centers on accidents and injuries. both presenters brought out about the perversity of this. maybe 300 die as a result of accidents, maybe 40,000 die from occupational disease. when i put that figure to the occupational safety director, he did not dissent from it. we can’t know exaclty how many people die from occupational disease because there’s a big problem of cause and effect. and that’s a big problem for law.

around 1800 accidents prosecuted, only half a dozed cases of occupation induced disease prosecuted.

“if you install this effluent scrubber in the next six months, i wont prosecute.” warnings . bargaining is the routine mode of enforcement.

i talked about the perverse effects of prosecuting only accidents. inspectors much more concerned about the bodies on the floor.

expert evidence used to tell us that the best way to deal with nuclear waste was to bury it deeply underground and seal it with granite. the public was deeply opposed to that. lay knowledge wants it stored on the surface so you can see it in case it starts leaking. but where, of course, it can be blown up or otherwise got at. i would have thought a much greater risk. but there’s a lack of fit in the way we apprecite risk. of course the inspectors are caught in this—part of the job of inspectors is to convince people to wear the protective equipment or clothing—they get the “my father did it for forty years and he’s alright” problem.

the problem at three mile island was caused by operatives refusing to read the signals they were getting because they thought there was a computer fault. “it’s that bloody computer again” problem.

legal processes, april 1

what i’d like to do tomorrow: have a shorter session, and then if it helps, i’ll say a quick word or two about the exam. and then give feedback on the course and materials and so on.


try and draw the threads together to think a bit more reflectively.


presentations!


why the haves come out ahead. players divided into two categories.


one shotters, and repeat players. OS’s and RPs. OS’s are your auto injury plaintiffs and such.


stakes for RP are usually much smaller. that particular case doesn’t cause their life to hang in the balance. the OS and RP have different attitudes and skills about the game. RP’s have specialists for figuring out the lowests costs, they have repetitve interactions with courts, clerks, staff, etc. they might favor creditor’s story over debtor’s because they see creditor all the time. RP can also take risks and maximize gain and minimize loss over time. OS can’t take risks like that. the only advantage OS has is that they don’t have to worry about their reputation, they can be backstabbers.


takes an acrimonious relationship for OS v. OS

finance company vs. debtor (most common)

welfare client v. agency, injury victim vs. insurance company (infrequent outside of personal injury arena)

RP v RP, purchaser v supplier, (litigation also infrequent, because these players deal with each other often, they’re motivated to find alternative controls.


phillip’s presentation

maybe more of a continuum between RP and OS. what’s the role of lawyers.


RP’s can buy more legal services at higher rates (often means better quality). one way OS’s can level the playing field: specialist attorneys. field of law specialist, or client type specialist. divorce attorney, in-house counsel. often low prestige, stereotype, uncreative brand of legal services; paid small fees by nonreturning clients. they can’t make long-term strategies, because RP’s can make compromises to faciliate long-term deals.


alternatives to the official system:

  • inaction
    • because they lack information, the gain is too low, costs too high
  • settlement
  • private systems
    • usually used when parties comparable in size.


some advantages OS has

RP has to focus on rule making, OS just has to look out for number one. no trade off of tangible gains for future benefits.


RP’s not necessarily haves—might be a frequent criminal. even as a OS you can be the have rather than the have-not.


other stuff

os vs. rp is a continuum rather than a dichotomy.


particularly in the criminal arena there are disadvantaged people who are big repeat players. but they do have some RP advantages, they know how plea bargaining works. and you sometimes have one shotters with considerable resources. OJ Simpson springs to mind. he could get the best defense money could buy.


how about trade-offs in the interest of establishing precedent that will benefit them in future disputes?


what if you’ve had a couple minor criminal disputes, a divorce, a few real estate disputes, and THEN a murder. what are you then? you might be involved in a different branch of law and the RP advantages might no longer apply. then the distinction can break down.


you can feel rhetoric vs reality creeping in. what happened to equality before the law? there are a lot of cultural and structural impediments to that, particularly when the law is something you can train in. (it’s run by lawyers, and lawyers benefit from making a market out of justice. but is there an alternative, without or with the monetary motive, that fixes this RP problem?)


“lets leave the imbalance in favor of governments and agencies.”


“i like equality.”


in my head i’m noting the fact that poor people or people in debt are judgment/liability proof.


suggestions for improving the imbalance, at teh endof the chapter. you can change the rules. change the institutional arrangements. you could argue that the US turning to alternative dispute resolution is a way of fixing it, to give small people easier, wider, less intimidating access. it also lengthens the dispute process for repeat players.


billy’s argument: anyone can become a repeat player. (really?) and the law won’t necessarily favor the aristocrat. (funny look from hawkins)


american lawyer with plus office in washington. he was here in the 70’s. did his research on personal injury lawyers in the states. one of the things he looked at was the level of specialization, expertise, among lawyers. and correlated the degree to which they were specialists with their success. in winning cases and in securing larger rather than smaller awards of damages. divided lawyers into four categories. at the bottom were the generalists. the sort of lawyer you’d encounter if you went in the first office with a brass placquard on the door. compare that with someone specializing in one particular area of tax law. there was a clear correlation between the generalists and low levels of success and the specialists and high levels of success. very marked. (did he compensate for the knowledge they had that allowed them to turn down cases they thought they would lose?)


repeat players know which lawyers to hire, they know to pick the specialist. one shotters will just look in the yellow pages. (this can still be reduced to money.)


kate: more important question: what can you buy for your legal cause? what can’t others buy?


my question: if there’s really an economic payoff from paying for the specialist, then you’ll pay it. so the real problem may arise in non-monetary consequences—injunctions, etc.


maybe a generalist judge acts against a repeat player? maybe they make allowances for novices?


how bout the situation of one shotters against each other? we see this in family disputes.


remember the dispute that involved pig slough being sprayed on a bank branch? probably caused the bank a lot of grief.


how about the RP vs. the OS?


the OS vs. the RP? in this country conditional fees have arised, a mixture of a contingency arrangement and a flat fee. we don’t have no-win no-fee systems. it was introduced to give people with bona fide legal claims some access to the courts so that they can take on the insurance company.


how well things work in this country remains to be seen. i talked to someone who’s not in a position to bring legal action unless he can do it on a no-win no-fee basis. defamation situation. letter circulated by former employers in the financial services industry saying that he had been engaged in transactions they regarded as unethical and they would be willing to take over his clients. he, meanwhile, has been cleared of charges of unethical conduct by the financial services authority. but of course is now laboring under great disadvantage caused by former employers. he was advised that he had a good case, but he can’t take action without a no-win no-fee lawyer.


RP vs. RP looks like an OS case if one party is particularly driven to be vindicated or the financial stakes are high for the company.


some of these factors keep people out of court, push them into settlement. could that be a good thing? the “american advantage to the inefficiency of litigation”?


so, truncated session tomorrow.


Legal Processes, April 2

Lacie article and Hawkins article are good summaries of everything. so maybe look to that for a summary of everything.


legal approach needs aspects of social science approach to figure out how discretion works. “juris” focuses too much on court and politics rather than administrators and executives.

lawyers bound about thinking the rule of law can govern something, rather than discretion.


social science vs. legal methods of research.

for social science, discretion is present at every stage. legal theorists look at it in courts, howa judge used discretion in sentencing. or choosing whether to cite a certain case.

discretion is always examined in context of something… regulatory agency, police force, etc.


legal theorist equates substantive fairness with procedural fairness. why is why administrative law reviews evaluate for procedural fairness rather than on the merits.

although reasonable person standard allows courts to intervene in an apparently deferential way.


anil:


criticism of lacie article.


do you really need to marry legal theory and social science? substantive fairness and procedural fairness. reasonable person standard. a front for using discretion? or is the resonable person standard a way of taking away a lower court’s discretion rather than bringing a higher court’s discretion?


hawkins reading: read the last chapter! the reader’s digest of the entire semester. goes through the role of prosecution and legal decision making. you only need to prosecute a few people to get a point across.


prosecution: just a message? only changes the fate of one individual case.


categorization probably effects the outcome more than the activity of the prosecutor.


politicians get elected by promising to be tough on crime. everyone votes for it. ronald reagan had as a plank was cutting back red tape, the OSHA budget (17% in his first year).


the exam

mine will the first one, the wednesday of your last week, three hours, closed book. oxford style exam. eight questions. you’ll be required to answer four. do not answer more than four.

questions of fairly general character intended to make you think, to get you to think about what you’ve read, thought about, intended to make you mount an argument, and use evidence (!) from the readings and from class teachings and discussion and so on.

provocative statement which you’ll have to discuss.

“we don’t like liverpool football club because they’re a bunch of mean red scouses. discuss.”

cite particular authors? or just ideas? cite both! if you can cite empirical evidence, authors in support of a particular argument, that helps secure your answer.


45 minutes per question, is what the math breaks down to.


feedback about the course

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