Dichotomies and Oppositions in Legal Argumentation

In this paper we use a series of examples to show how oppositions and dichotomies are fundamental in legal argumentation, and vitally important to be aware of, because of their twofold nature. On the one hand, they are argument structures underlying various kinds of rational argumentation commonly used in law as a means of getting to the truth in a conflict of opinion under critical discussion by two opposing sides before a tryer of fact. On the other hand, they are argument structures underling moves made in strategic advocacy by both sides that function as platforms for different kinds of questionable argumentation tactics and moves that are in some instances tricky and deceptive.     

PRETREATMENT CHARACTERISTICS AND TREATMENT PERFORMANCE OF LEGALLY COERCED VERSUS VOLUNTARY METHADONE MAINTENANCE ADMISSIONS*

Analyses were conducted to determine whether addicts coerced into treatment by actions of the criminal justice system differed from voluntary entrants in terms of background characteristics, early risk factors, or drug use and criminal behavior during pretreatment, treatment, and post treatment periods. Subjects were categorized into high, moderate, and low legal coercion groups based on their official legal status, related narcotics testing requirements, and their self-reported perceptions of criminal justice system coercion. Those induced to enter the treatment program through legal channels had slightly higher rates of serious property offenses and higher proportions of time incarcerated and under legal supervision, but they did not differ from voluntary entrants in overall criminal behavior during pretreatment periods. All groups showed substantial improvement in level of narcotics use, criminal involvement, and most other behaviors during treatment, but there was some regression after treatment.     

Rules of Power and the Power of Rules

Abstract
The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes . For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision-making, one that quite deliberately insulates the decision-taker from considerations of what would be in the circumstances the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision-making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision-making. Schauer canvasses the claims of what he calls "presumptive positivism" to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares "presumptive positivism" with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement.     

WHEN “WHAT WORKS” NEVER DID: DODGING THE “SCARLET M” IN CORRECTIONAL REHABILITATION

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BREAKING THE CYCLE OF DRUGS AND CRIME: FINDINGS FROM THE BIRMINGHAM BTC DEMONSTRATION

Research Summary: We compared 137 felony defendants arrested before the implementation of Breaking the Cycle, a pretrial intervention with felony defendants that included drug testing, supervision, and drug treatment as needed, to 245 BTC participants. We found Significant lower rates of arrest and self-reported drug use and crime among BTC participants during the next year.
Policy Implications: Systematic intervention aimed at all drug-involved felony defendants, not just selected defendants, is effective, but may encounter substantial challenges in achieving collaboration across criminal justice agencies, services providers, and levels/branches of government.