DECISION-MAKING IN THE CRIMINAL COURTS:

This article attempts an analysis of the relationship between the guilty-plea bargaining process and presentence investigation reports. It is argued that because plea-bargaining has increasingly come to involve bargaining over sentence. probation officers, as a consequence, have increasingly come to experience encroachment upon their decision-making autonomy. In this predicament they have found little support from judges, who, committed to norms of managerial efficiency will reassert the primacy of the plea-bargain when probation officers refuse to ratify previously negotiated sentence agreements. The policy implications of this for the criminal justice system are discussed.     

Abolition of plea bargaining in the coast guard

In the administration of criminal justice, the abolition or restriction of plea bargaining has raised many issues. Of primary concern is the impact on court systems and case dispositions. This research note looks at the Coast Guard military justice system and its 1975 decision to abolish pretrial agreements, effectively eliminating plea bargaining in that system. Studying criminal cases from 1973 to 1978, we determine if that intervention in a time series exhibits any potency. Specifically, what difference did the abolition of plea bargaining make? We find that the abolition of plea bargaining did not make much of a difference to the Coast Guard military justice system, similar to the conclusions drawn from studies of civilian courts.     

Imperatives for the enforceability of collective agreements in Nigera

This article examines the rationale behind the non-enforcement of collective agreements in Nigeria, theories propounded for the enforceability of collective agreements, and the need for courts in Nigeria to adopt a more liberal approach towards enforcement. This article argues that contrary to the position of the law in Nigeria that collective agreements are not enforceable, this parties, especially trade union leaders, academics and notable oil companies in Nigeria such as Shell, Chevron, etc. do intend to enter into legal relations whenever a collective agreement is arrived at and this is the reason why there is less industrial unrest in the private sector of the oil and gas industry in Nigeria. This article argues that multinational oil companies honour collective agreements entered into with their trade unions because they see such agreements as intended to create legal relations. It is the Nigerian government and its agencies that have failed to honour collective agreements freely entered into with trade unions, despite the time and resources that have been expended to arrive at such collective agreements. This article argues that collective agreements do not fall within the purview of social or domestic arrangements, but business transactions. This article takes a look at the position of collective agreements in other jurisdictions such as the USA, Great Britain, South Africa and The Netherlands, and urges the court in Nigeria to expound the law relating to collective agreement since there are several legislations in Nigeria touching on collective agreements which the courts can expound.     

Not guilty by reason of insanity: a research note

The question of the insanity defense centers around the moralist-determinist debate. Insanity defense laws are premised on the assumption that individuals choose between right and wrong, and are responsible for that choice. Mental disease, however, can overpower, and thus, not of their own volition, insane persons become out-of-control. Hence, they cannot be held responsible for their behavior or subject to criminal punishment. It is the purpose of the insanity defense, of course, to distinguish between offenders in need of punitive disposition and ones where a medical-custodial disposition is best. The research presented here indicates that defendants who successfully raise the plea of NGRI do not beat the rap. In other words, they do not spend fewer days in confinement via an NGRI plea than had they been convicted and sentenced. Thus, for the reasons of justice, equity, and fairness the insanity defense should be kept intact. The wave of public fear and reaction to the decision in a few highly publicized cases is insufficient grounds for eliminating the plea. Not only is the use of the insanity defense infrequent, but defendants who select it give up important safeguards. Namely, they are unable to plea bargain, are stigmatized as "mad and bad," have no access to probation or parole, and are confined for an indeterminate amount of time. That some would call this leniency we find surprising. And, of course, we should not forget the findings reported here. NGRI acquittees spend more time being locked up. Defendants who successfully raise the NGRI plea are confined until professionals say they are no longer dangerous.(ABSTRACT TRUNCATED AT 250 WORDS)     

The Impropriety of Plea Agreements: A Tale of Two Counties

In this article, the author, a former prosecutor and a former assistant public defender, draws on his five and a half years of experience as a "professional plea bargainer" to explore the many subtleties of a practice that he suggests leads to work avoidance, misplaced loyalties, coercion, and other negative characteristics on the part of courthouse regulars, and to injustice for those criminal defendants who do not wish to plead guilty. He suggests that criminal courts have become overly dependent on plea bargaining, which is used much more extensively than is either necessary or appropriate.     

票据抗辩的分类

传统票据抗辩分类理论将其分为物的抗辩和人的抗辩两大类 ,但事实上还存在其它抗辩事由。为此 ,许多学者尝试变换票据抗辩分类的依据 ,尽量包容所有的抗辩事由 ,但却又往往偏离了票据抗辩分类的本质属性。应跳出非此即彼的思维窠臼 ,研究物的抗辩和人的抗辩之外现实存在的 ,介于二者之间的其他抗辩的一般理论及其具体形式。     

Exclusion payments in patent settlements: a legal and economic perspective

Legal context. The application of antitrust law to assess settlementsof patent litigation raises difficult issues concerning theappropriate balance of patent law and competition policy. Recentprivate and public invocations of US antitrust law to challengesettlement agreements covering pharmaceutical patents have broughtthese issues to the forefront. The agreements share the commonfeature of an ‘exclusion payment’ from a brand-namedrug manufacturer (the patentee) to a generic drug manufacturer(the accused infringer) in exchange for a promise by the genericcompany to refrain from marketing its product for some time.US federal courts that have examined these agreements have variedin their approach and conclusions regarding the appropriateantitrust analysis to be applied to these settlements. Key points. This article argues that informed antitrust analysisof such agreements must take due note of the ‘probabilistic’nature of patent property rights. Practical significance. The article concludes that exclusionpayments fall outside the scope of a patent's exclusionary scopeand thus are subject to antitrust scrutiny. It demonstratesthat barring anticompetitive exclusion payments in settlementnegotiation prevents collusive bargains that harm consumer welfarewithout discouraging efficient settlements.     

Administration and Justice

Although the existence of plea negotiation as an operative mode of disposition in most criminal court systems has been firmly established, its role in the administration of justice remains a topic of considerable debate. It has been claimed that plea negotiation subverts ideal principles of justice while attending to administrative needs for speedy case settlement. More recent research indicates that disposition by guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition process in the Multnomah County court system in Portland, Oregon suggest that, under certain conditions, plea negotiation can effect a balance between competing but interdependent domains of action in the criminal disposition process.     

Precommitment stategies [sic] for disposition of frozen embryos

The question of whether to enforce agreements to implant frozen embryos after divorce has become a major concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce. This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies that persons use to plan their lives. It shows that refusal to enforce contracts for frozen embryos is unfair to the parties who relied on them in undertaking invasive infertility treatments, and possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized.     

‘We,the European People . . .’—Relâche?

Abstract:  The failure of the European constitutional treaty has not been taken seriously by the European constitutionalists. It is regarded as a kind of accident which will be repaired in due course. The article is a plea for a reopening of the debate on Europeanness. Europe cannot and should not be a 'superstate'; nor can it be a kind of revival of the European nation state which is threatened by globalisation. Even less can it be a community of post-national deliberators as Jürgen Habermas would have it. Europe should be constructed as an entity of its own which responds to the heterarchical relational logic of fragmentation which characterises post-modernity and globalisation of which it is a part. It cannot be its counterpart. Europe does not need a 'constitution', and it does not need a 'people' either.     

Why is it taking so long to move down the road?: Creating a regional border agreement in the DMV as an alternative for the Interstate Compact on the Placement of Children

The Interstate Compact on the Placement of Children (ICPC) is an agreement between all 50 states and the District of Columbia governing the process of placing a foster child out of state. Notorious for its long wait times and system backlog, the ICPC presents a host of problems for children attempting to move mere minutes across state lines to be with a relative or kin placement instead of state foster care. In an effort to make this process smoother, 18 different “border agreements” have been adopted by several neighboring states across the U.S. Such border agreements give temporary placement licenses to relatives and kin while the ICPC process is ongoing. While this is a good start towards a solution, the ICPC could be further streamlined if border agreements were used more widely, especially in regional contexts. This article considers the possibility of such a regional agreement between the District of Columbia, Maryland, and Northern Virginia (known as the “DMV”). By comparing and contrasting two existing border agreements in these three jurisdictions, a regional DMV border agreement can be created implementing the best terms of both agreements.     

ADVERSARIAL AND NONADVERSARIAL JUSTICE: A COMPARISON OF GUILTY PLEAS AND TRIALS*

Despite the frequency of guilty pleas, researchers disagree about the ability of plea bargaining to provide justice. Critics argue that plea bargaining deprives defendants of due process rights and procedural safeguards Proponents argue that guilty pleas save resources for cases that require trial and allow officials flexibility to tailor justice to individual defendants. This article explores these issues by examining the effect of defendant and case characteristics on sentence severity for 3,269 male robbery and burglary defendants who either pled guilty or were tried in six U.S. jurisdictions, three of which had recently attempted to eliminate or greatly reduce plea bargaining and three with few restrictions on plea bargaining. The results confirm some criticisms of plea bargaining, but refute others. More criminally experienced defendants and defendants who pled guilty at the earliest opportunity did not receive sentencing leniency. Moreover, to a large extent, the same variables predict sentence severity for guilty pleas and trials. In contrast, the results show that defendants convicted at trial received more severe sanctions than defendants who pled guilty, controlling for case severity, evidence, and offender characteristics The results also suggest that the jurisdictions which attempted to control plea bargaining through more centralized control of assistance succeeded in tightening the fit between case characteristics and sentences for both cases adjudicated by guilty plea and trial.     

Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses

Abstract

Software companies would like to be able to control what their customers and reviewers can say about them and their software. To this end, many include in their license agreements “DeWitt” or “gagwrap” clauses which purport to prevent written reviews or disclosure of benchmark test results involving the software without the manufacturer's consent. While the courts have recognized the enforceability of software licenses to protect manufacturers, they have so far not addressed the enforceability of gagwrap clauses. This article examines gagwrap clauses and examines them in a public policy framework arising from contract and First Amendment jurisprudence. It proposes a test for the enforceability of the clauses that leaves in place many agreements not to speak but renders gagwrap clauses suspect on public policy grounds.     

如何看待被告人有罪答辩——辩诉交易的一点启示

美国辩诉交易制度中的合理因素 ,可以为我国刑事司法实践中正确等待被告人有答辩提供借鉴。应当更新诉讼理念 ,将认罪答辩视为被告人作为诉讼主体对刑事程序运作方式的一种选择 ,建立激励被告人自愿作出有罪答辩的机制 ,对此类案件可简化诉讼程序 ,同时应建立对被告人有罪答辩自愿性明智性的审查机制。     

Plea bargaining with budgetary constraints

In this paper, we construct a simple model that illustrates a perverse effect associated with plea bargaining in which an increase in sanctions can lead to reduced deterrence. This finding is derived from the interaction of binding budgetary constraints and plea bargaining. In an environment with these institutional features, higher sanctions are not always optimal when resources are limited, even if such sanctions are costless. Such potential phenomena may be useful in explaining the fact that many states have introduced limitations on plea bargaining. Prosecutors being concerned with their conviction rates is necessary for such a result to be present.     

论票据抗辩中的欠缺行为能力抗辩

依现有票据抗辩理论,欠缺行为能力的抗辩被视为对物抗辩的一种类型,属于不受限制的抗辩。本文认为,不论是从民法理论的角度,还是从票据法理论的角度来看,欠缺行为能力的抗辩都应是一种可限制的抗辩。在此基础上,本文着重讨论了限制的具体情形及效力问题。     

Gauging the Strength of Evidence Prior to Plea Bargaining: The Interpretive Procedures of Court-Appointed Defense Attorneys

An important debate among court observers is whether plea bargaining undermines the ideals of justice. This article presents findings that may rec-oncile some inconsistent research conclusions. It describes how, prior to plea bargaining, one group of court-appointed defense attorneys gauges the strength of evidence through a tacit, taken-for-granted process that emulates trial proceedings: based on their understanding of evidence in the legal com-munity, defenders imagine a courtroom dialogue wherein the prosecution and defense take turns presenting their cases in front of a judge and jury. At issue throughout the dialogue is whether or to what extent information is suffi-dent, legal, and persuasive enough to convict the defendant. Because the process is part of the defenders' ongoing and unspoken daily routines, it may elude unsuspecting investigators. Ironically, this means not only that some analysts may inappropriately conclude that legal ideals play no role in plea bargaining but also that others may ingenuously assume that such behavior is more ethical than it actually is.     

Customary arbitration and the plea of estoppel under Nigerian law

This article examines the process of customary arbitration, which is recognised under Nigerian law as a valid dispute resolution mechanism. It attempts to answer the question whether an award by a customary arbitral panel can give rise to the plea of estoppel per rem judicatam.     

Protecting wild land from wind farms in a post-EU Scotland

Scotland is one of the places in Europe to have experienced significant wind farm development over recent years. Concern about impacts on wild land has resulted in legal challenges based on European Union (EU) law. This article analyses whether wild land can be protected from wind farms and the differences that the United Kingdom departure from the EU will make. It considers the concept of ‘wild land’ compared with ‘wilderness’, analyses the legal basis (if any) for wild land protection and examines potential impacts from wind farms. It highlights the significance of EU environmental law, particularly nature conservation and environmental assessment law, and analyses recent Scottish jurisprudence that has applied this. The role of the European Commission and Court of Justice of the EU (CJEU) is emphasised as a key part of EU environmental law. The article asks whether relevant global and regional environmental agreements can effectively replace the content of the substantive law and context of the Commission and CJEU. Four environmental agreements and two related compliance procedures are briefly evaluated. The conclusion is that while EU law does not directly provide protection for wild land, it is considerably stronger than the international environmental agreements that may replace it.     

Guilt Shall Not Escape or Innocence Suffer? The Limits of Plea Bargaining When Defendant Guilt is Uncertain

This article examines optimal prosecutor behavior with respectto plea bargaining when defendant guilt is uncertain. I showthat when jury beliefs and behavior are determined endogenouslyin equilibrium along with defendant and prosecutor behavior,plea bargaining can play only a limited role in managing society'sconflicting desires to maximize punishment of the guilty andminimize punishment of the falsely accused. In particular, whileit can be optimal for prosecutors to use plea bargaining toinduce a large fraction of guilty defendants to voluntarilysort themselves from the innocent, such sorting must come atthe cost of imposing relatively short sentences on such guiltydefendants who accept plea bargains.