Framework for Analysis of Legal Mobilization: A Decision-Making Model

The American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law on his or her own behalf Without discounting the contribution to our understanding of legal mobilization which has been made by the access-to-justice movement, the author argues that focusing on the poor and the distribution of legal services has limited our understanding of the legal system.
The article presents an alternative analytic framework for examination of citizen use of the law. The model of legal mobilization presented focuses on demands rather than needs, on citizens rather than lawyers or judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawing on the literature and available empirical evidence, the author attempts to analytically clarify the complex process of legal mobilization by organizing relevant variables into a decision-making model that focuses on the individual actor and the factors weighed in deciding whether and how to proceed in mobilizing the law.     

Statistical Evidence,Assertions and Responsibility

The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications. It is suggested that since naked statistical evidence cannot generate knowledge, it cannot be the basis for assertions of facts; and assertions of facts are practically and legally important: they are essential in order to establish the court's responsibility for its decisions and its errors. Such responsibility is needed in order to maintain the legitimacy of the legal system; to avoid unfairness to defendants; and to ensure that legal decision‐makers have no valid claims against the decision‐making arrangement. As a result, the legal system is inclined to avoid statistical evidence altogether.     

Mental Health Review Tribunals

This paper is concerned with the operation of the Mental Health Review Tribunal system and summarizes the findings of an empirical investigation of tribunal decision making. The tribunals constitute an independent body which reviews the necessity for the continued compulsory detention of patients in psychiatric hospitals. The research focuses on the interpretation and application of mental health legislation by individual tribunal members and the manner in which these individual approaches are qualified in the group context. The study comprises three stages: a self-report questionnaire, a national statistical analysis of decisions, and a simulation study of decision making using a videotape of a hypothetical case. The research establishes considerable inconsistency in tribunal decision making at both an individual and group level and attributes some of this inconsistency to individually based factors isolated by the research. The findings further indicate that these factors remain influential within the group decision-making context.     

Reduced punishment in Israel in the case of murder: bridging the medico-legal gap

The psychiatrist's assessment of criminal responsibility of an accused in court for an act of crime has always been a matter of great difficulty. In 1997, clause 300a was incorporated into the Penal Code of Israel, thereby permitting a more lenient punishment for murder than mandatory life imprisonment. The clause includes the definition of what is meant by "severe mental disorder" and "significantly restricted capacity" by the defendant to understand the criminal nature of his or her act and to refrain from committing it. Usage of the concepts "disorder" and "significantly restricted capacity" in addressing the issue of diminished responsibility of the mentally ill is new to the Israeli legal code. The emergence and evolvement of the above concepts are presented through a historical review of the Israeli encoded law concerning mental illness, analyzed from a psychiatric perspective.     

The concept of free will and forensic psychiatry

This text examines how conceptions of free will impact on legal systems and forensic psychiatry: free will is generally regarded as a prerequisite for responsibility, criminal responsibility included, while forensic psychiatry to a large extent deals with the limits imposed on responsibility by mental disorder. First we discuss the question of whether there is and has been such an impact. The answer is yes: different conceptions of free will have inspired different systems of law and forensic psychiatry, as becomes clear when looking at the accountability doctrine as compared to the unique Swedish system rejecting this doctrine. However, there is no necessary connection between doctrines of responsibility and conceptions of free will, since the former primarily says something about when someone should be held responsible and the latter says something about when someone really is free in a sense relevant to responsibility. This leads to the second question: should conceptions of free will have an impact on law and forensic psychiatry? We argue: that they should not, given the implausibility the normative theory retributivism, which posits a direct connection between free will and punishment. More importantly, questions of free will are complicated and unresolved philosophical issues that are better left out of the everyday decision-making incumbent on the legal and psychiatric systems. Instead, we recommend using an empirically useful and gradual conception of autonomy to facilitate the determination of legal responsibility. This autonomy conception, being neutral on the question of free will, eliminates the need to take a stand on it.     

Defining a clinically useful model for assessing competence to consent to treatment

Burdened with the responsibility of making an initial assessment of their patients' capacity to make treatment decisions, clinicians need a sound clinical assessment model. Drawing on ethical, legal, and clinical sources, the author reviews the appropriateness of existing models and standards and describes why each fails the needs of the clinician. The patient's ability to form a therapeutic alliance is shown to be a valid assessment model for defining a treatment decision-making ability threshold because it adheres to widely accepted ethical and legal standards. Using threshold because it adheres to widely accepted ethical and legal standards. Using this model to set a threshold for the decision to bring cases to the attention of a court or administrative body, the therapist arrives at a satisfactory balance between competent treatment, patient autonomy, and judicially mandated due process imperatives while providing a forum for patient education and assessment of the clinician's technical skill. Explanations of case examples illustrate the use of the therapeutic alliance for this purpose in a variety of clinical situations. Specific recommendations are made on what may be represented to court in cases in which the patient's competence appears to fall below this treatment threshold.     

Psychosocial concepts in juvenile law

This study was designed to clarify the types of information about juveniles and their families that are relevant for three types of juvenile court decisions: (a) the pretrial detention of juveniles; (b) their transfer for trial in criminal courts: and (c) disposition decisions after delinquency adjudication. Predominant legal standards for these decisions are described, information relevance for the decisions is defined, and why past studies have failed to clarify the information needs of juvenile court decision makers is explained. Results of a study involving a national sample of juvenile court personnel include an empirically derived domain of psychosocial and behavioral characteristics of juveniles and their families relevant for courts' interpretations of controlling legal standards; factor analysis of the domain, describing dimensions of the domain of information about juveniles and families; and an examination of the relation of these information categories to each legal standard controlling the decision areas in question. The interpretation of results may facilitate decision making by juvenile courts, evaluations by mental health professionals who assist juvenile courts, and further research by social scientists who study discretionary juvenile court decisions.This research was supported by grant No. MH-35090 from the Center for Studies of Antisocial and Violent Behavior, National Institute of Mental Health, DHHS. Portions of the study were conducted in collaboration with the National Juvenile Law Center, Inc. of St. Louis. The authors wish to acknowledge Martha Bellew-Smith, Marcia Conlin, and Robert Rust, who contributed substantially to the conduct of the study. Others who participated at various stages are Steve Bellus and Sandra Seigel     

Minor or adult? Introducing decision analysis in forensic age estimation

Nowadays, forensic age estimation takes an important role in worldwide forensic and medico-legal institutes that are solicited by judicial or administrative authorities for providing an expert report on the age of individuals. The authorities’ ultimate issue of interest is often the probability that the person is younger or older than a given age threshold, which is usually the age of majority. Such information is fundamental for deciding whether a person being judged falls under the legal category of an adult. This is a decision that may have important consequences for the individual, depending on the legal framework in which the decision is made. The aim of this paper is to introduce a normative approach for assisting the authority in the decision-making process given knowledge from available findings reported by means of probabilities. The normative approach proposed here has been acknowledged in the forensic framework, and represents a promising structure for reasoning that can support the decision-making process in forensic age estimation. The paper introduces the fundamental elements of decision theory applied to the specific case of age estimation, and provides some examples to illustrate its practical application.     

精神病患者限定责任能力评定分级依据的研究

目的研究对限定责任能力进行分级的依据。方法根据责任能力的程度将92例限定责任能力案例分为三组,进行卡方检验、方差分析、因子分析和判别分析。结果三组在作案类型和责任能力量表评分上存在显著差异;反映作案预谋和准备的因子1在所有因子中最重要;作案现实动机、作案时间选择性、作案当时情绪、对作案行为的罪错性认识、生活自理能力损害和现实检验能力损害可以作为限定责任能力分级的判别因子。结论限定责任能力可以被划分为三级。     

Reviewable Automated Decision-Making

In this paper we introduce the concept of ‘reviewability' as an alternative approach to improving the accountability of automated decision-making that involves machine learning systems. In doing so, we draw on an understanding of automated decision-making as a socio-technical process, involving both human (organisational) and technical components, beginning before a decision is made and extending beyond the decision itself. Although explanations for automated decisions may be useful in some contexts, they focus more narrowly on the model and therefore do not provide the information about that process as a whole that is necessary for many aspects of accountability, regulatory oversight, and assessments for legal compliance. Drawing on previous work on the application of administrative law and judicial review mechanisms to automated decision-making in the public sector, we argue that breaking down the automated decision-making process into its technical and organisational components allows us to consider how appropriate record-keeping and logging mechanisms implemented at each stage of that process would allow for the process as a whole to be reviewed. Although significant research is needed to explore how it can be implemented, we argue that a reviewability framework potentially offers for a more useful and more holistic form of accountability for automated decision-making than approaches focused more narrowly on explanations.     

Juvenile court intake decision making: The importance of family affiliation

Based on an analysis of official records and systematic observations of intake hearings, this study empirically evaluates the criteria employed in determining whether a juvenile is petitioned to court for a formal hearing and if petitioned, whether he or she is held in preadjudicatory detention. Attention is paid to legal, social, demeanor-related, and demographic variables as they impinge on intake decision making. The major finding of this study is that the farther one goes into the intake decision-making process, the more does family disaffiliation become the prominent independent variable. The article places this area of research within relevant criminological paradigms (positivist, interactionist, neo- Marxist), summarizes the existing empirical findings, and integrates theory and evidence with the goal of producing a statement on this screening stage in the juvenile justice endeavor.     

Limits of guardian treatment refusal: a reasonableness standard

The debate concerning the legal and ethical bases of guardian refusal of medical treatment on behalf of incompetent patients often ignores critical distinctions among types of patients and guardians. For example, patients who have expressed preferences regarding treatment while competent are distinguishable from patients who have always lacked the competency requisite to expressing a treatment preference. "Bonded guardians," whose relationship with the patient preexisted guardianship, should have a different role in the decision-making process than "non-bonded guardians," who were strangers to the patient prior to the guardian-ward relationship. This Article proposes criteria for guardian treatment refusal on behalf of incompetent patients. Under the model for guardian decision making presented here, bonded guardians should be preferred over non-bonded guardians, and bonded guardians should be allowed discretion to make treatment choices, limited only by a standard of reasonableness policed by the courts. The Author presents legal and ethical justifications for the bonded guardian's heightened role. Finally, he considers the proper roles of health professionals, hospital ethics committees, and judges in the decision-making process.     

Decision Making at the Firm Level: The of a Criminal Legal Aid Case Management System

The Criminal Legal Aid System, in Scotland as in England, is under severe economic strain. A key element in the legal profession's response should be reliance on IT in improving the efficiency of criminal legal aid case management. This paper is a work-in-progress report on our involvement (under a Teaching Company Scheme Project) with a Glasgow criminal practice and their use of an existing case management and automation tool. Although the focus of the research is on improving the scope of the present system, our work has involved us in an exploration of decision-making processes at the level of the firm and the role of computerisation and automation at all levels in the firm. More specifically, our investigations focus on the interaction of the fee earners and paralegals in the use they make of information and how, applying management science techniques, they could improve on that use. This in turn led to a reconsideration of how the case management system uses information available to the differing levels of “decision makers” within the firm. This creates an interesting contrast with the “decision making” process at the level of adjudication.     

Criminality and moral dysfunctions: neurological,biochemical, and genetic dimensions

In this article, the author attempts to demonstrate a relationship between neurobiological dysfunctions and/or genetically determined deviant behavior and personality traits as well as moral abnormalities. Data from neuroscience show that a number of neurological dysfunctions are linked to cognitive and emotional disturbances. Cognitive and emotional abnormalities, in turn, are frequently related to moral dysfunctions. Moreover, neurological disorders can produce dramatic psychological and social problems, personality changes, and behavioral problems in patients. Those mental, emotional, and psychosocial problems and related moral dysfunctions are frequently linked to violence and/or criminal behavior. Genetic research found evidence of inheritability of antisocial traits, which interfere with moral development and activities. This information has consequences for any assessment and disposition within the legal system. More research on the interrelationship between neuro(bio)logical, genetic, emotional, and mental aspects of moral dysfunctions is needed for the development of adequate treatment, prevention, and intervention programs.     

Implicit theories of criminal responsibility

Three questions relevant to insanity decisions were examined: (a) What informational cues are weighed most heavily in the attribution of criminal responsibility? (b) How do verdict forms influence these attributions? And (c) How do individuals' beliefs about insanity and responsibility influence decision making? Undergraduate subjects (n=181) responded to vignettes portraying an act by a mentally disordered defendant. Psychiatric jargon was avoided, so that attributions were not a function of diagnostic terminology. It was found that, under the traditional scheme of not guilty by reason of insanity (NGRI) vs. guilty, level of mental disorder (schizophrenia vs. personality disorder) was the primary determinant of insanity decisions. Also, insanity judgments were more likely to be made for acts performed without planful intentionality. Under the alternative scheme of NGRI vs. guilty but mentally ill (GBMI) vs. guilty, mental disorder still controlled NGRI verdicts; a bizarre act increased the likelihood of a GBMI over a guilty verdict; and the GBMI verdict option reduced markedly the proportion of psychotic defendants found NGRI and the proportion of personality disordered defendants found guilty. There were no significant differences between diagnostic groups in the likelihood of being found GBMI. Most subjects preferred to utilize the GBMI option as a compromise verdict even in the face of very severe mental illness. Attitudinal data revealed considerable variation in agreement with the classic moral logic of the insanity defense and accounted for a significant amount of the variance in insanity decisions. The implications for both social policy and future research are discussed.     

Evaluating adolescent decision making in legal contexts

Challenges the use by policy researchers of a model for comparing adolescent and adult decision making that is based on informed consent standards. An expanded decision-making framework designed to evaluate judgment in adults and adolescents can better test the empirical basis of paternalistic legal policies. The theoretical and empirical literature on the informed consent framework is critiqued and an alternative framework incorporating judgment factors is proposed. Three judgment factors—temporal perspective, attitude toward risk, and peer and parental influence—and their effects on decision making are explored. Finally, implications for future research are analyzed in several decision-making contexts.Several of the ideas in this article were originally presented by the first author and were published as part of a symposium on competence (see Scott, 1992). The current article expands and refines these ideas, provides a more substantial research base, and suggests several future research directions. We thank Joseph Allen, Richard Bonnie, Baruch Fischhoff, William Gardner, John Monahan, Edward Mulvey, Richard Redding, Paul Slovic, and three anonymous reviewers for their helpful comments. Special thanks to Thomas Grisso for providing much constructive criticism and to Wendy Shang for outstanding research assistance. Finally, we would like to acknowledge the MacArthur Foundation, which supported this work in its early stages.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

Family involvement, independence, and patient autonomy in practice

The legal debate about patient autonomy focuses mainly on mental capacity and provision of information. The influence of the family on the decisions of the competent adult patient has scarcely been discussed in English medical law. Dominated by the bioethical principle of individual autonomy, the law concentrates on the patient and takes an exclusionary stand regarding relatives. Hence, the aim of this article is to examine the attitude of English law towards the involvement of relatives when patients make decisions, and to investigate the views and experiences of patients and their relatives in reality. To fulfil this aim, a qualitative study was carried out in six NHS trusts in England. The study was based on in-depth interviews conducted with patients who suffer from long-term illnesses, and their relatives. In the interviews, patients stated that the relatives assisted them in making informed decisions about treatment. Patients said that relatives had an influence on the decision-making process and on the decision itself, but also reported that ultimately relatives left the final decision to the patient. The findings reflect a relational approach to patient autonomy. When making decisions about treatment, patients needed to know that their relatives would support them no matter what they decided. However, exceptional cases which demonstrated substantial familial influence suggest that the law should secure the patient's interest in making their own decisions. In light of these findings, it is argued that the current exclusionary attitude expressed in English medical law towards the role of relatives should be changed.     

The impact of victim provocation on judgments of legal responsibility: An experimental assessment

This study examines the effects of victim provocation on judgments of the legal responsibility for a homicide. Previous research and various legal rulings suggest that victim provocation is related to judicial decision-making. However, the magnitude of this relationship has not been assessed.Using a quasi-experimental procedure in which subjects read a case account of a homicide, this study indicates that as victim provocation increases, the level of legal responsibility and the years of imprisonment attributed to the offender decreases. The paper concludes with suggestions for future research in actual judicial decision-making, victim precipitation, and applying an attributional framework to these areas.     

日本刑法中对责任能力的认定

在日本刑法中,责任能力的判断是法律判断。通说是将规范责任论具体化,以反对动机形成可能性、他行为可能性为基础的非难为基本内容来把握责任能力。行为人是否可能具有规范意识(辨认能力),是否可能控制自己的行为(控制能力),是进行责任能力判断的核心内容。因此,在司法实务中,当行为人基于精神障碍而犯罪时,需要对其辨认能力、控制能力...