Civil-common Law Divergence on Penalties: Is it a Thing of the Past?

Liverpool Law Review - This article examines the rationale for the common law’s penalty rule and finds it lacking. It examines the rule as applied in different common law systems since the...     

In Defense of the Standard Picture: Overcoming Death by a Thousand Cuts

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged here, because if they are correct, the SP is not a tenable account of law.     

New Technology Meets an Old Teaching Challenge: Using Digital Video Recordings, Annotation Software, and Deliberate Practice Techniques to Improve Student Negotiation Skills

There is a world of difference between teaching negotiation theory, which pertains to conceptual understanding, and teaching negotiation skills, which pertain to actual behavior in real‐world situations. The principle of reflective practice is widely used for theoretical instruction. Deliberate practice, however, is a more powerful model for skills training. Cognitive scientists have discovered that subjects will learn skills best when they perform well‐defined tasks at appropriate levels of difficulty, and when they are given immediate feedback, an opportunity to correct their errors, and an opportunity to practice until the tasks become routine. To satisfy the deliberate practice conditions for large graduate‐level negotiation courses (some as large as seventy students), students were assigned to use webcams with their laptop computers to video record their negotiation exercises. Before each exercise, students were assigned to prepare for and to concentrate on performing two or three well‐defined tasks. Students reviewed these recordings and commented on their performances in a journal before uploading the videos and journals to an assigned network folder. The instructor and teaching assistants then reviewed the journals and specified portions of the videos and provided individual written feedback to the students. The instructors found that student negotiating skills have improved significantly using this new system. In comparison with earlier semesters, students also felt they were involved in a more intense and personal learning experience. A majority of students reported they intend to apply the principles of deliberate practice in their professional lives after graduation. The authors have found this method continues to challenge their ability to identify and describe the skills used by expert negotiators. As an addition to this new methodology, two of the authors have spearheaded the development of video annotation software, known as “MediaNotes,” to help students and instructors review, comment upon, and learn from video recordings of negotiations. Based on their experiences using the software to support deliberate practice, the authors expect this tool to initiate a significant advance in our ability to recognize and describe expert negotiation behavior and in students’ ability to improve their negotiating skills.     

Back to first principles: a new model for the regulation of drug promotion

The US Food and Drug Administration''s (‘FDA’ or the ‘Agency’) current regulatory framework for drug promotion, by significantly restricting the ability of drug manufacturers to communicate important, accurate, up-to-date scientific information about their products that is truthful and non-misleading, runs afoul of the First Amendment and actually runs counter to the Agency''s public health mission. Our article proposes a New Model that represents an initial proposal for a modern, sustainable regulatory framework that comprehensively addresses drug promotion while protecting the public health, protecting manufacturers’ First Amendment rights, establishing clear and understandable rules, and maintaining the integrity of the FDA approval process. The New Model would create three categories of manufacturer communications—(1) Scientific Exchange and Other Exempt Communications, (2) Non-Core Communications, and (3) Core Communications—that would be regulated consistent with the First Amendment and according to the strength of the government''s interest in regulating the specific communications included within each category. The New Model should address the FDA''s concerns related to off-label speech while protecting drug manufacturers’ freedom to engage in truthful and non-misleading communications about their products.     

The Role of Societal Benefits and Fairness Concerns Among Decision Makers and Decision Recipients

Four experiments examined the role of costs and benefits versus procedural and distributive justice for procedural fairness and procedural evaluations among decision makers and decision recipients. Experiments 1 and 2 examined the responses of actual judges in a 2 (high versus low benefit) x 2 (search procedure conducted respectfully versus disrespectfully) randomized factorial. In both studies judges evaluated procedures differently than is typical among samples of decision recipients: outcome concerns strongly influenced both procedural evaluations and procedural fairness while procedural concerns such as voice and respect were minimally influential. Whereas fairness concerns continued to be important among these decision makers, outcome fairness was more influential than procedural fairness. Studies 3 and 4 varied role (authority versus subordinate), procedural respect, and societal benefits. Both experiments supported our predictions that procedural criteria would dominate the procedural evaluations of subordinates whereas outcome concerns such as societal benefits would dominate the procedural evaluations of authorities.     

COMMENTARY ON WARSHAK'S "BLANKET RESTRICTIONS: OVERNIGHT CONTACT BETWEEN PARENTS AND YOUNG CHILDREN"

In a previous issue of this journal, Richard A. Warshak provided a summary of the developmental literature as it bears on overnight restrictions during custody arrangements. Here, the authors comment on points of agreement and disagreement with Warshak based on their reading of the theoretical and empirical literature on development. Particular reference is made to Warshak's interpretation of attachment theory and research. Points of agreement include the importance of fathers and all caregivers in the infant/young child's life as well as the overstatement in the literature of the significance of separation experiences and a "sensitive period" for attachment. Points of clear disagreement include what the author contends is an erroneous review of the empirical literature on overnights with other caregivers. Based on their review of the data on overnight visitation, the authors conclude on a more cautious note.     

The Ombudsman Revisited: Thirty Years of Hawaiian Experience

This article examines the classical, or real, ombudsman. Unlike quasi ombudsmen, which are bureaucratic control mechanisms subject to executive leaders or agency administrators, real ombudsmen are operationally independent officials of the legislative branch. In 1969, the state of Hawaii was the first to create a real ombudsman. Although Iowa, Nebraska, Alaska, and Arizona have since followed Hawaii's lead, no intensive, long-term study of American ombudsmen has yet been published. This article examines the ombudsman as a monitor of Hawaii's bureaucracies and considers the extent to which the office has become institutionalized over the past 30 years. Nearly 75,000 citizens have had their complaints investigated by the ombudsman, and more than one-fifth of them were rectified, that is, the agency reversed its original action. This study indicates that the classical ombudsman can become institutionalized in the United States. The findings have policy implications as jurisdictions at the federal, state, and local levels consider the creation of ombudsmen or quasi ombudsmen.     

Jail reform litigation: The issue of rights and remedies

This paper looks at the vast array of lawsuits filed by jail inmates challenging the conditions of their confinement. While much attention has been focused on prison reform litigation, many of the nation's jails have been subject to civil rights lawsuits, and many are now operating under some form of court order. An earlier version of this paper was presented at the annual meeting of the Southern Criminal Justice Association, October 7–9, 1987, Birmingham, AL.