On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?

Abstract. In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication.     

Assessing oral skills—time for reflection,time for risk

Abstract

THIS PAPER aims to establish a framework from which we can explain our dissatisfaction with defining what we teach and what and how we assess within legal education. To what extent can we, the professions or the public, have confidence that our assessment processes predict effective professional competence?

We will try to establish this framework by placing the discussion in the context of a workshop of assessment of oral skills run at the 2001 Bar Vocational Course conference. The workshop raised issues which we believe encapsulate the difficulties of measuring performance in such a way that it reliably predicts professional effectiveness. From this we will attempt to highlight the shortcomings of the current teaching, learning and assessment strategies more generally.

We go on to consider the role of student reflection in support of summative assessment: is it a reliable way of helping to plug the competence‐performance gap we have identified? What is its role in summative assessment? What demands does it make on tutor and learner? Since we cannot guarantee to find the best solutions first time, we make a plea for taking the risk of failure as well as success, and trying out ideas.     

The Crime of Self‐Solicitation

I hold that we could justifiably criminalize some threats, on account of the fact that issuing them renders one more likely to commit a crime. But I also point out that if we criminalize some threat‐issuing, we will de facto criminalize some warning‐issuing, which is unjust. So we ought not to criminalize any threat‐issuing. Instead, we should criminalize (roughly) rendering oneself more likely to commit a crime. This would allow us to punish all the threat‐issuers we should want to punish. It would also force us to punish some warning‐issuers, but we would not be punishing them for their warning‐issuing.     

Retributive Whisper: Communicative Elements in Parole

The aims of retributive or nonutilitarian sentencing are said to conflict with parole as part of a determinate sentencing framework. In this article, we claim that a nonutilitarian approach to punishment does not necessarily conflict with parole. In particular, by adopting core elements of Duff's framework of communicative sentencing, we argue that parole inherently holds a communicative meaning in the form of retributive whisper and can thus be reconciled with a nonutilitarian approach to punishment. In addition, we explore a way to enhance the communicative potential in the parole process and suggest that by recognizing and further incorporating the inherent communicative message in parole we can increase or maximize the board's communicative potential. Finally, we discuss some benefits that can emerge from adapting a communicative sentencing framework to the parole process.     

The Intrinsic Good of Justice

Some retributivists claim that when we punish wrongdoers we achieve a good: justice. The paper argues that the idea of justice, though rhetorically freighted with positive value, contains only a small core of universally agreed meaning; and its development in a variety of competing conceptions simply recapitulates, without resolving, debates within the theory of punishment. If, to break this deadlock, we stipulate an expressly retributivist conception of justice, then we should concede that punishment which is just (in the stipulated sense) may be morally wrong.     

Current Criminal Justice Projects Here and Abroad

The present survey is based mainly, as far as the United States is concerned, on the files of the Smithsonian Science Information Exchange (SSIE), from whom we received—with the financial support of the University of Central Florida—the most recent five hundred or so project reports in the field of criminal and juvenile justice and related areas, including crime-related drug and alcohol abuse projects. As to foreign projects, only a few are listed with SSIE; most of the following information is the result of an admittedly incomplete inquiry among organizations, research institutes, and universities abroad. May we say here that we received excellent cooperation from them which we greatly appreciated. Space being limited, we can describe in the following article only a few of the some one-thousand projects we examined.     

鉴定结论冲突的程序性规制

鉴定结论冲突是鉴定结论之间存在不一致性,相互对立排斥或者相互干扰。鉴定结论的冲突从某种程度上影响了诉讼的正常进行,但考察其机理,又存在着某种必然性,是一种多元因素的产物。在诉讼中运用鉴定结论,应针对其机理,实行程序性的必要的预防措施,避免其对诉讼的不良影响;此外,面对冲突的鉴定结论,亦可用程序性措施加以规制。     

The role of interest rates during the transition to a market economy

We construct a simple two period model of an economy in transition from being centrally planned to being market oriented. Using this model, we draw certain positive conclusions about economic policies that reduce distortions during the transition period. In particular, we focus on the role of interest rates, a market parameter that has previously been almost entirely ignored in planned economies. Using stylized data derived from Czechoslovakia, we show that increase in nominal interest rates can actually be welfare-improving by partially compensating for the distortions induced by the transition process. The model is sufficiently general to be applied to a number of transition economies, and we use the cases of Czechoslovakia, the USSR, and China as examples of some of the phenomena that we are trying to explain. We show that the model generates a constrained, suboptimal equilibrium. In particular, we see that raising interest rates during the transition period reduces repressed savings, brought about by shortages in the controlled market. An improvement in consumer utility can therefore be brought about.     

Transnational Legal Process and State Change

This article applies a sociolegal approach to the study of transnational legal processes and their effects within countries. First, we clarify the concepts of transnational law, transnational legal process, and transnational legal order. Second, we provide a typology of five dimensions of state change that we can assess empirically. Third, we explain the factors that determine the variable effects of transnational legal processes and organize these factors into three clusters. Fourth, we introduce four empirical studies of transnational legal processes' differential effects in five regulatory areas in Asia, Africa, and South America that illustrate these points. Together, they provide a guide of how to study the interaction of transnational and national legal processes, and the extent and limits of transnational legal processes' effects.     

JOURNEY FROM SUCCESS TO SIGNIFICANCE

One of the most important journeys that we can take as individuals is the journey from success to significance. Success is what we become and what we achieve when we value ourselves. Significance, however, is what we become and what we achieve when we value others. In this article, based on remarks by Judge David W. Young at the May 2007 “Summit on Unified Family Courts,” Judge Young invites us on a journey, first described by John Maxwell in The Journey from Success to Significance. Judge Young further explores what the journey from success to significance entails and reminds us that any success we have will leave the world with us while our significance will continue to live on in future generations through our service to children, families, and others.     

Max Frei theory revisitation: does really strokes depth change along time?

A serious problem in questioned document examination is to establish the age of written lines. With respect to paper dating, in the past, Max Frei theory (based only on microscope analysis) claimed that strokes are time-dependent. Therefore, according to this theory, it has been asserted that from the analysis of the strokes depth changes it is possible to try to date the handwritten document (to find out that the document is older than ...). In the present work, we investigate the strokes depth change by a laser profilometer considering not only the time but also microclimatic variations. First, we analyze the stability of stroke characteristics along the time. In particular, we demonstrate that if the document is preserved without change of temperature and humidity, the depth of the strokes has not appreciable changes. In this way, we have the purpose to verify the real possibility of documents dating by means of Max Frei theory. Subsequently, we test how the 3D profile of strokes changes in connection with the microclimatic variations. In particular, we test humidity variations. With this experiment, we show that humidity variations reduce the strokes depth. Moreover, this effect shows a non-linear trend, leaving a hysteresis on the depth. Finally, we show that the analysis of 3D stroke profile is unable to determine the age of documents.     

Medicare program; durable medical equipment regional carrier service areas and related matters. Final rule

This final rule provides a mechanism for us to expeditiously make changes to the durable medical equipment regional carrier (DMERC) service area boundaries without notice and comment rulemaking. Through this mechanism, we can change the geographical boundaries served by the regional contractors that process durable medical equipment claims through issuance of a Federal Register notice and make other minor changes in the contract administration of the DMERCs. The mechanism provides a method for increasing or decreasing the number of DMERCs, changing the boundaries of DMERCs based on criteria other than the boundaries of the Common Working File sectors, and awarding new contractors to perform statistical analysis or maintain the national supplier clearinghouse. We will publish these changes and their justifications in a Federal Register notice, rather than through notice and comment rulemaking. Although we may change the number and configuration of regional carriers, we are not altering the criteria and factors that we use in awarding contracts. Through this final rule, we are improving the contracting process so that we can swiftly meet the challenges of the changing healthcare industry and address the changing needs of beneficiaries, suppliers, and the Medicare program.     

Picturing neuroscience research through a human rights lens: imaging first-episode schizophrenic treatment-naive individuals

In this paper we examine imaging research involving first-episode schizophrenic treatment-naive individuals (FESTNIs) through a legal human rights lens; in particular, the lens of the Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Biomedical Research. We identify a number of ethical and legal hot spots highlighted by the Protocol, and offer a series of recommendations designed to ensure the human rights compatibility of this research. Subsequently, we argue that the lack of reporting on design elements related to ethical concerns frustrates commitments at the heart of the human rights approach, namely, transparency and openness to international scrutiny. To redress this problem, we introduce two norms for the first time: ethical transparency, and ethical reproducibility. When concluding, we offer a set of reporting guidelines designed to operationalize these norms in the context of imaging research involving FESTNIs. Though we will not make this case here, we believe that parallel reporting guidelines should be incorporated into other areas of research involving human subjects.     

Validation of a radiographic method to establish new fetal growth standards: radio-anatomical correlation

In forensic medicine, specialists might face difficulties when estimating age at death from fetal remains. Depending on the state of preservation, this age assessment is essentially based on the diaphyseal size of long bones. In a previous work, for the measurement of fetal femoral ossified shafts, we already established a simple and reliable method using a radiographic protocol. Since we previously stated that radiographic measurement values were closer to real anatomical size than ultrasonographic ones, in the present study we decided to check the importance of the difference between radiographic and anatomical measurements. Therefore, we dissected 30 pairs of fetal femurs and compared the difference between the two kinds of measurements (in percentages). This difference seemed to be slight (4.027%), but it was large enough to entail significant differences (p < 0.001). In order to provide a correction factor for radiographic measurements, we established a linear regression formula, which was tested on another sample of 30 pairs of dissected femurs. As a consequence of the good results, we improved the linear regression using a powerful statistical tool: the bootstrap. Finally, we obtained a simple equation that allowed us to figure out the real anatomical size with an R2 of 99% and a mean relative difference of 0.153% (with a standard error of 0.252 mm, and therefore a 95% confidence interval with limits of -0.35 and 0.657 mm). This difference did not entail any significant differences (p = 0.498), and therefore, we concluded that with the proposed correction, radiographic measurements can easily be used by forensic specialists in their daily tasks or to establish new growth standards in order to best fit their population of interest.     

论司法对行业自治的介入

着行业协会在我国的迅速发展,其所引发的法律问题也逐渐凸显,特别是如何建立合理的对行业自治的司法介入机制成为我们必须关注的重大课题。在处理好司法权与自治权关系的前提下,应当建立起有效的司法监督机制,以保障成员免受协会自治权力的侵害；在综合考虑协会事务的性质、组织的地位以及权力的属性等多方因素的基础上,应当在民事诉讼和行政诉讼之间选择合理的司法介入方式；在允许司法介入行业自治的同时,应要求法院保持相对谨慎的态度并遵循必要原则,以防止对社会自治的不当干预。     

A comment on methodological concerns: A rejoinder

This rejoinder to Professor Cohen's Comment is intended to elaborate on approaches we utilized in our original paper. Some of our specification was necessitated by data availability (e.g., the specification of the sanction process). We attempt to clarify our approach in regard to the intervention process. We provide an explanation of the modeling that could underly a test of the hypothesis that the control effect is a product of the arrest process—a test that we had regarded as informative but peripheral to our main points. As noted, a significant part of that test utilizes the full range of control variables available to us. Finally, we enumerate what we felt to be the main points of our paper—points we are afraid might otherwise be lost in this discussion of methodology.     

Predicting Outcomes with Juvenile Court Case Histories

This report supplements a prior article in this journal (Rogers and Williams, 1994). Utilizing Ted Palmer's 1991 formulation, we identified a set of indicators relevant to juvenile court decision-making and to policy formulation. Here, through a more stringent statistical technique, we provide additional evidence of the potential that juvenile court histories possess for both theory and practice. We explore case materials gained and maintained by juvenile probation officers as a way of generating outcome predictors for whether youth receive probation or institutionalization. Using discriminant function analysis, we obtain relatively good prediction. Delinquency history and social psychological variables are found to enhance prediction of case outcomes. Contrary to some scholars, we believe the juvenile court is here to stay. Thus, the fundamental issue becomes one of making it a more efficient, effective instrument for reintegrating youths it must serve. As this institution approaches its centennial in 1999, we believe the court must become a focal point of research. This article is intended to further that task. After identifying the three strongest predictive variables (offense after first hearing, alienation, and denial of blame), we employ our seven key indicators as a guide for illustrating their everyday application for juvenile probation officers working with their youthful clientele.