How can we account for trials in which the judgment speaks not only to and about the defendants and their deeds, but also about injustices from a more distant past? Building on approaches to ghosts and haunting by Jacques Derrida and Avery Gordon, I propose to examine a set of the German post-1990 trials for human rights violations committed in the former East Germany as instances of haunted justice. Here, the courts not only adjudicated the present cases, but also tried to ‘go back and make whole what has been smashed’ (Benjamin 1969) by their own lack of judgment in the failed trials of the Nazi perpetrators. In this instance, the ‘time is out of joint’, and we see the ghosts of the failed trials of Nazi perpetrators standing next to the inheritance of impunity fostered in West German courts, and next to the now present East German perpetrators. What can justice mean in such a complex constellation of injustices? I argue that the ghostly dimension of these cases point to a need for a kind of justice and engagement that can ultimately not be found in courts - yet the courts’ engagement with this ghostly matter is nevertheless important.
Download the article from SSRN at the link.
This article carries the metaphor of ghosts and hauntings through the article. An exceptionally moving piece.
On Talk of the Nation Science Friday May 14, the law and science of lie detection and mind reading through MRI scans. A scan of the literature reveals that scholars have writing in this area for several years now. Here's a short bibliography.
Great post from Dale Pendell at the Huffington Post on The Magic of Corporate Personhood, teasing out all sorts of magic imagery in the history of corporate law. Here's an excerpt.
[S]ometimes it is instructive to frame the story in a different, if perhaps more fanciful, way. From a magical perspective, corporate personhood is conjuring--that is, giving a body to a spirit, to an abstract entity. There are three great prototypical shamanistic figures in the Western mythic tradition: Eve, Orpheus, and Faust. Of these three, conjuring is the specialty of the latter, and seems to be the most common form of shamanistic magic in western culture. Philosophically, conjuring is reification--that is, making a "thing" of something abstract.
In traditional ceremonial magic, giving a body to a spirit involves a magic circle (in this case the Court), certain writs and spells ("In the matter of"), and an abundance of smoke and mirrors. Breaking the circle--releasing the conjured spirit into the world at large--marks the magic as "black."
But what sort of spirit or wraith is it that has been conjured? By its magical writ (its "charter"), the corporate spirit's entire purpose is to accumulate monetary profit, without limit. This insatiable quality marks the spirit as a form of what Buddhists call the "hungry ghost," the preta, inhabitants of one of the six realms of existence. Hungry ghosts are beings with such huge appetites, with such swollen bellies and with such narrow throats, that they live in a state of perpetual craving. Zen Buddhists make a small grain offering to the hungry ghosts at every meal, as a gesture of compassion, to try to relieve some of their suffering.
A fascinating way to rethink history, economics, and law, whether or not one agrees.
As part of the current debate in Australia on the adoption of a bill or charter of rights, the experience of other countries is informative. The German Constitution contains a comprehensive catalogue of rights and freedoms. This includes principles protecting religious freedom, most importantly article 4, which declares ‘inviolable’ the ‘freedom of faith, of conscience, and freedom to profess a religion or a particular philosophy’. It also guarantees the ‘undisturbed practice of religion’. Should Australia opt to adopt a charter of rights in any form, it is highly likely that this instrument will contain some protection of cultural and religious freedom. While initially an Australian charter would not be constitutionally entrenched, a comparison with Germany is still helpful because it can be expected that issues encountered under a constitutional charter also arise under a legislative one. The German experience provides examples of the type of social controversies which the courts are called on to decide in relation to the protection of religious freedom.
Issues encountered in Germany seem to belong to two broad categories: first, which kind of behaviour falls within the ambit of freedom of religion and, secondly, to what degree can religious freedom be limited. In relation to the first category, it appears uncontroversial that practices such as praying, conducting Sunday service or ringing of church bells constitute religious behaviour. But what about announcing a charitable drive to collect second hand goods from the pulpit; selling food or drink at religious meetings or refusing to bury an urn in a cemetery? In relation to the second category, even if a type of behaviour is found to be within the definition of freedom of belief, there must be limitations to this freedom. But where should the line be drawn? In the last few decades, the German Constitutional Court was called upon to rule on controversies where one party’s freedom to exercise his or her religion infringed another party’s freedom not to be exposed to religion or religious practices. Many of these occurred within the educational system. Famous examples are the School Prayer Case, where a student’s parents objected to their child’s exposure to school prayer outside of religious education; the Classroom Crucifix Case, where non-Christian parents objected to their child being exposed to crucifixes in classrooms of a public, non-religious school; and the Teacher Headscarf Case where the Court was asked to decide whether an Islamic teacher is entitled to wear a headscarf while teaching in a public school, thus exposing students to a manifestation of her faith. All of these cases saw the Constitutional Court become involved in morally highly controversial disputes, which received a lot of attention from the public and where public opinion was clearly divided. This paper will explain the course which the Court took in resolving these disputes. It will argue that a clause protecting freedom of belief in a charter of rights inevitably involves the courts in disputes which are morally difficult, highly controversial and the subject of much public debate. However, in my view, this is a small price to pay for providing protection of the public’s religious beliefs in a charter of rights. rights inevitably involves the courts in disputes which are morally difficult, highly controversial and the subject of much public debate. However, in my view, this is a small price to pay for providing protection of the public’s religious beliefs in a charter of rights.
Download it from SSRN at the link.
Among the cases Professor Koch discusses is the Gesundbeter (Faithhealer) case. Says Professor Koch,
Another example of the Court's liberal approach to what types of actions fall within the guarantee of free exercise of religion is the Faith-Healer (Gesundbeter) case. In this case the complainant's wife died because he honoured her refusal, on religious grounds, to have a blood transfusion necessitated by the birth of their child. Both husband and wife belonged to the same cult and held the same belief with respect to blood transfusions. He was convicted of a misdemeanour for his failure to provide his spouse with necessary assistance. While he had allowed a doctor to be summoned when irregularities in the birth occurred, he left the decision with respect to transfusion and hospitalization to his wife, who was conscious and mentally competent until her death. The husband brought a constitutional complaint in the Constitutional Court, challenging his conviction by the lower courts on the basis that his actions had accorded with his religious beliefs and claiming that his conviction violated his right to freely exercise his religion. The Constitutional Court emphasized that article 4 generally safeguards the right of the individual to base his or her entire conduct upon the teachings of his or her religion and to act according to these internal convictions. The husband's actions therefore constituted an exercise of religion within the sphere of protection of article 4. (footnotes omitted).
The Federal Constitutional Court is the highest Court in Germany, and hears all questions arising out of federal constitutional (Grundgesetz) issues and questions arising over the fundamental rights of German citizens.
This article doesn't exactly focus on magical thinking, but it does emphasize the importance of a good grasp of scientific and mathematic principles, especially for attorneys and judges.
Michael I. Meyerson, University of Baltimore School of Law, has written Significant Statistics: The Unwitting Policy Making of Mathematically Ignorant Judges, forthcoming in the Pepperdine Law Review for 2010. Here is the abstract.
This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, I will discuss how courts use race- and gender-based statistics to reduce damages in tort cases for women and racial minorities, and silently assert that past racism and sexism will continue. In the final section, I will examine how judges have improperly allocated the risk of error in cases such as securities fraud, so as to reward those who have attempted to manipulate stock prices illegally.
What a great idea for a law review article. David S. Caudill, Villanova University School of Law, has published "Arsenic and Old Chemistry: Images of Mad Alchemists, Experts Attacking Experts, and the Crisis in Forensic Science," in volume 15 of Boston University Journal of Science and Technology Law (2009). Here is the abstract.
Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent "interpretive repertoires" in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.
The Blog of Legal Times points out a gem in retiring Justice David Souter's opinions, suggesting that we should read his work more closely than we have been. Justice Souter believes in giving a lot of leeway to the plaintiff when she states a claim, as in the Iqbal decision, recently released.
The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel. That is not what we have here.
Citing Twombly, he goes on, "Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. " Justice Souter finds no suggestions analogous to the little green men kind in the allegation that Attorney General Ashcroft et al., might have known of and condoned the policy complained of by the petitioner.
Must be that New Hampshire pragmatism. It will be missed.
David Bernstein, George Mason University Law School, has published The Unfinished Daubert Revolution, at 10 Engage 35 (2009). Here is the abstract.
The American judiciary traditionally had a laissez-faire approach toward the admissibility of most categories of expert testimony. This approach ended in federal courts when the U.S. Supreme Court adopted a reliability test for the admissibility of expert testimony in a series of three decisions: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of Evidence 702 in 2000 then codified a stringent interpretation of the "Daubert trilogy." Many states also have adopted some version of the Daubert reliability test.
Contrary to many early predictions, the consequences of Daubert v. Merrell Dow Pharmaceuticals and its progeny have been quite positive. Contrary to pre-Daubert practice, all expert testimony is now scrutinized for reliability before admitted into court. The result has been a significant decline in the presentation of "quackspertise" in the courts.
Nevertheless, Daubert has several significant limitations.
First, many state courts have declined to adopt it, and have instead retained more liberal rules of admissibility, some of which amount to a "let-it-all-in" philosophy.
Second, some federal judges simply refuse to acknowledge the sea change that has occurred in the law of expert testimony, and continue to rely on older, more inclusionary precedents.
Third, Daubert has been ineffective in limiting the use of junk science by prosecutors in criminal cases. Finally, Daubert is a poor match for certain kinds of expert testimony. Specifically, Rule 702 and the Daubert trilogy are ill-equipped to deal with "connoisseur" testimony that arises from a legitimate field of expertise, but whose reliability is ultimately dependent on the personal credibility of the testifying expert.
This paper addresses each of these limitations in turn, and suggests that the relevant problems demand resolution before one can conclude that the Daubert revolution is complete.