INTRODUCTION "For nearly twenty years, law journals have been the forum for a bitter debate ... more INTRODUCTION "For nearly twenty years, law journals have been the forum for a bitter debate about the use at trial of overtly probabilistic evidence and methods,” wrote Jonathan J. Koehler and Daniel N. Shaviro in 1990. 1 More than two decades have passed since then, but these words still hold true. Despite the voluminous body of literature dedicated to the issue of statistical evidence, it continues to generate great controversy in evidence law scholarship. Questions regarding the admissibility and sufficiency of statistical evidence arise in court in ever-growing numbers, with seemingly inconsistent treatment in the case-law. 2 The aim of this article is to dispel some of the confusion surrounding the use of statistical evidence in the legal arena. This will be done by viewing statistical evidence through the prism of Sensitivity—namely, the epistemological requirement that a belief be sensitive to the truth as a necessary condition for knowledge. We will use the epistemologi...
The paper explores the boundaries of the plea bargaining process, and makes a case for extending ... more The paper explores the boundaries of the plea bargaining process, and makes a case for extending them to the criminal standard of proof. It examines the possibility of converting the criminal standard of proof into a default rule, subject to negotiation between the parties. Under current plea bargaining practices, the defendant agrees to plead guilty in exchange for concessions on punishment offered by the prosecutor. According to the model proposed here, the negotiation process would not be limited to the attainment of a full admission of guilt. Rather, the prosecutor would also be able to obtain from the defendant a reduction of the standard of proof required to establish criminal culpability, in return for an offer of leniency in sentencing. For instance, the parties could agree that the case will be tried according to the civil standard of proof – the preponderance of the evidence. In exchange for the greater risk of conviction, faced by the defendant under a lower standard of p...
N our article Overcoming Procedural Boundaries, we set out to dispense with the anachronistic and... more N our article Overcoming Procedural Boundaries, we set out to dispense with the anachronistic and dysfunctional distinction between civil and criminal procedure and to offer in its stead an alternative procedural divide that is better suited to the goals and purposes of the original dichotomy. The article is comprised of two parts, the first deconstructive and the second reconstructive. The deconstructive part seeks to show that the existing procedural taxonomy is inherently flawed both conceptually and practically. It highlights a fundamental shortcoming of our present procedural system in failing to provide adequate protections to individuals who are sued by the government or by large organizational entities and who face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. We survey the many justifications for the civilcriminal rift in procedure, which include utilitarian, egalitarian, expressive,...
Under Romano-Canon law and, later, under medieval English and Continental law, “full proof” requi... more Under Romano-Canon law and, later, under medieval English and Continental law, “full proof” requirements for serious crimes entailed the incriminating testimony of at least two witnesses. However, the testimony of one witness or the testimony of two witnesses who were insufficiently credible could amount to “half proof,” which justified the imposition of a lenient sanction. Partial certainty of guilt resulted in partial punishment, reflecting what Michel Foucault termed the “continuous gradation” principle:
In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the ... more In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitatio...
Conventional wisdom holds that citizenship is not a consumer good and that the goods that the sta... more Conventional wisdom holds that citizenship is not a consumer good and that the goods that the state confers upon its constituents - e.g., economic and social rights, access to its publicly provided goods, political voice and identity - are not for sale. In fact the relationships between states and actual or potential citizens is ideally conceptualized as standing in stark contrast to a seller-buyer relationship. The ideal type of state-citizen relationship is based in an entirely political sphere disconnected from the market. In accordance with this ideal conceptualization of the state-citizen relationship, the state is depicted as the legal guardian of citizenship entrusted with authority to determine who its members are and to exercise its powers in a manner that is compatible with the underlying normative values shared by its political members. It has an obligation to reinforce and represent the politically pronounced collective will. Being a citizen, according to this view, tran...
Utility considerations have been central to legal factfinding, at least since the days of Jeremy ... more Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: the cost-minimization model, geared toward minimization of the cost of errors and...
Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At th... more Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At the end of trial, the defendant is pronounced either “guilty” or “not guilty” of the charges made against her, excluding the possibility of judgment of degree. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant “probably guilty,” “most certainly guilty,” or “guilty by preponderance of the evidence.” Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. Findings of guilt are construed as asserting factual and legal truths. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. The prevailing decision-making model, with its ‘on-off’ formulation of guilt, is so broadly established that it is considered an axiom— but there is nothing natural or pre-political about it, nor about the derivati...
Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sop... more Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sophisticated articulation of Kant’s legal and political philosophy. While Kant’s thinking on metaphysics and ethics has received paramount attention in the academic discourse, his contribution to legal and political theory has been somewhat marginalized. One reason for Kant’s exclusion from the central canon of political and legal philosophy is the abstract and very complicated nature of Kantian writing on law and political power, most particularly in the Doctrine of Right. Another reason is the difficulties many writers have encountered in their attempts to reconcile Kant’s political and legal writing with his moral philosophy. Against this background, the novelty and importance of Force and Freedom cannot be overstated.
Alternative dispute resolution (ADR) refers to a variety of private processes for resolving dispu... more Alternative dispute resolution (ADR) refers to a variety of private processes for resolving disputes, independent of trial before a court of law. Economists are interested in ADR for two main reasons. First, from an ex post perspective, the manner in which disputes are resolved or decided in society affects the operation of the legal system and its cost-efficiency. Second, from an ex ante perspective, the manner in which rights are vindicated impacts primary behavior and investments in prospective dispute avoidance. The literature relating to the economic analysis of ADR can be divided into two facets: one facet is dedicated to the interests of litigating parties to make use of ADR mechanisms; the other is directed at the social interest in ADR. This chapter identifies the conditions under which parties will be incentivized to enter into ADR proceedings, and then moves on to examine the social welfare implications of ADR.
This study documents gender disparities in litigation‐cost rulings in Israel. It expands on the e... more This study documents gender disparities in litigation‐cost rulings in Israel. It expands on the existing literature on judicial bias in at least two important ways: by controlling for the merits of the cases and by focusing on civil litigation. The first improvement is methodological. The unique Israeli regime of litigation costs allows us to control for the merit of the cases, as well as for other typically unobservable variables, and thus to isolate and observe judicial bias. The second improvement on the existing literature on judicial bias involves focusing on outcome disparities in the civil (rather than criminal) justice system. Although numerous studies explore gender‐based disparities in the criminal justice sphere, only a very small number of studies explore such disparities in the civil arena. We found clear disparities in the allocation of litigation costs between men and women. Male plaintiffs who lost were ordered to pay the winners' legal fees more often than were losing women as sole plaintiffs or as part of all‐women plaintiff groups. Likewise, the fees women plaintiffs who lost a case were obliged to pay were less than those required of losing men, and women defendants who won cases received higher fee awards than similarly situated men.
Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars oft... more Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars often view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individualized evidence. But attempts to vindicate the suspicion or to dismantle it altogether have been largely unsuccessful. The aim of this Article is to provide a comprehensive answer to the statistical evidence debate. The Article offers a novel explanation for the suspicion toward statistical evidence, pointing to the epistemic inferiority of statistical evidence due to its lack of “Sensitivity” — namely, the requirement that a belief be counterfactually sensitive to the truth as a necessary condition of “Knowledge.” After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena. It claims that while the epistemic story provides an explanation for the suspicion toward statistical evidence, it does not provide a justification for this suspicion, for Sensitivity (like epistemology more generally) is not significant in the legal arena. Instead, this Article proposes an incentive-based vindication of the reluctance to use statistical evidence in court and points to the interesting interaction between the epistemic and the incentive-based approaches. After laying down the theoretical foundation, this Article demonstrates its descriptive potential. It demonstrates the proposed theory’s capacity to explain the prevailing legal doctrine and the rules governing the admissibility and sufficiency of statistical evidence across various categories, including DNA evidence and propensity-for-crime evidence as well as incriminating versus exonerating statistical evidence. On the prescriptive front, the Article provides criteria for legal reform and suggests that the admissibility of statistical evidence should be contingent on the type of offense or misconduct alleged against the defendant.
This article questions one of the most deeply-rooted taxonomies of modern legal thought, that div... more This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model's two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model's second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.
Confessions both hold a great promise and pose a grave danger. When the accused speaks against hi... more Confessions both hold a great promise and pose a grave danger. When the accused speaks against his interest and assumes responsibility for criminal actions this is viewed as a compelling sign of guilt. It is not, therefore, for naught that the confession has been crowned the "queen of evidence." Yet research conducted in the last few decades has shown that a substantial number of confessions are false, ranking the out of court confession high among the factors leading to the conviction of innocent people. The acceptance of DNA testing, has further substantiated this finding, igniting a renewed interest in out-of-court confessions. It is hard to assess the magnitude of social harm caused by the widespread and persistent resort to obtaining confessions, but one thing is evident from the vast literature on the matter: this evidentiary mechanism is currently overused, much beyond the optimal level. The reasons for this over-use are varied, among them the fact that confessions ...
The Israeli law governing cost and fee allocation diverges greatly from almost all other legal sy... more The Israeli law governing cost and fee allocation diverges greatly from almost all other legal systems in the Western world (with the exception of South Africa) in that cost allocation is left entirely in the discretion of the court. Although in practice judges usually follow the “loser pays rule”, (Uri Goren, Civil Procedure Issues (Tenth Edition, 2009) 744.) this is not mandated by law and judges can, and sometime do, diverge from it, ordering the winning party to pay the losing party’s litigation costs. In terms of the amounts awarded, some rhetorical transformation has taken place. Historically, courts tended to disregard the actual amounts expended by winning parties on the litigation when awarding costs, leading to their substantial under-compensation. In recent years, following the “constitutional revolution” which also constitutionalized civil procedure, those both within and outside of the judicial system have increasingly argued that litigation costs should be more in line with actual costs. But the extent to which the rhetorical transformation will infiltrate actual reality remains to be seen. In what follows we provide some information and insights concerning the rules and decisions regulating the allocation of trial costs and reflect on their impact on access to justice as well as on the behavior of the parties to the litigation.
The privatization of law model, the legal pluralism paradigm, and the literature on multicultural... more The privatization of law model, the legal pluralism paradigm, and the literature on multiculturalism are united in the assertion that the model of legal centralism, premised upon the monopolistic concentration of law production power in the hands of the state—lacks ...
INTRODUCTION "For nearly twenty years, law journals have been the forum for a bitter debate ... more INTRODUCTION "For nearly twenty years, law journals have been the forum for a bitter debate about the use at trial of overtly probabilistic evidence and methods,” wrote Jonathan J. Koehler and Daniel N. Shaviro in 1990. 1 More than two decades have passed since then, but these words still hold true. Despite the voluminous body of literature dedicated to the issue of statistical evidence, it continues to generate great controversy in evidence law scholarship. Questions regarding the admissibility and sufficiency of statistical evidence arise in court in ever-growing numbers, with seemingly inconsistent treatment in the case-law. 2 The aim of this article is to dispel some of the confusion surrounding the use of statistical evidence in the legal arena. This will be done by viewing statistical evidence through the prism of Sensitivity—namely, the epistemological requirement that a belief be sensitive to the truth as a necessary condition for knowledge. We will use the epistemologi...
The paper explores the boundaries of the plea bargaining process, and makes a case for extending ... more The paper explores the boundaries of the plea bargaining process, and makes a case for extending them to the criminal standard of proof. It examines the possibility of converting the criminal standard of proof into a default rule, subject to negotiation between the parties. Under current plea bargaining practices, the defendant agrees to plead guilty in exchange for concessions on punishment offered by the prosecutor. According to the model proposed here, the negotiation process would not be limited to the attainment of a full admission of guilt. Rather, the prosecutor would also be able to obtain from the defendant a reduction of the standard of proof required to establish criminal culpability, in return for an offer of leniency in sentencing. For instance, the parties could agree that the case will be tried according to the civil standard of proof – the preponderance of the evidence. In exchange for the greater risk of conviction, faced by the defendant under a lower standard of p...
N our article Overcoming Procedural Boundaries, we set out to dispense with the anachronistic and... more N our article Overcoming Procedural Boundaries, we set out to dispense with the anachronistic and dysfunctional distinction between civil and criminal procedure and to offer in its stead an alternative procedural divide that is better suited to the goals and purposes of the original dichotomy. The article is comprised of two parts, the first deconstructive and the second reconstructive. The deconstructive part seeks to show that the existing procedural taxonomy is inherently flawed both conceptually and practically. It highlights a fundamental shortcoming of our present procedural system in failing to provide adequate protections to individuals who are sued by the government or by large organizational entities and who face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. We survey the many justifications for the civilcriminal rift in procedure, which include utilitarian, egalitarian, expressive,...
Under Romano-Canon law and, later, under medieval English and Continental law, “full proof” requi... more Under Romano-Canon law and, later, under medieval English and Continental law, “full proof” requirements for serious crimes entailed the incriminating testimony of at least two witnesses. However, the testimony of one witness or the testimony of two witnesses who were insufficiently credible could amount to “half proof,” which justified the imposition of a lenient sanction. Partial certainty of guilt resulted in partial punishment, reflecting what Michel Foucault termed the “continuous gradation” principle:
In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the ... more In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitatio...
Conventional wisdom holds that citizenship is not a consumer good and that the goods that the sta... more Conventional wisdom holds that citizenship is not a consumer good and that the goods that the state confers upon its constituents - e.g., economic and social rights, access to its publicly provided goods, political voice and identity - are not for sale. In fact the relationships between states and actual or potential citizens is ideally conceptualized as standing in stark contrast to a seller-buyer relationship. The ideal type of state-citizen relationship is based in an entirely political sphere disconnected from the market. In accordance with this ideal conceptualization of the state-citizen relationship, the state is depicted as the legal guardian of citizenship entrusted with authority to determine who its members are and to exercise its powers in a manner that is compatible with the underlying normative values shared by its political members. It has an obligation to reinforce and represent the politically pronounced collective will. Being a citizen, according to this view, tran...
Utility considerations have been central to legal factfinding, at least since the days of Jeremy ... more Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: the cost-minimization model, geared toward minimization of the cost of errors and...
Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At th... more Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At the end of trial, the defendant is pronounced either “guilty” or “not guilty” of the charges made against her, excluding the possibility of judgment of degree. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant “probably guilty,” “most certainly guilty,” or “guilty by preponderance of the evidence.” Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. Findings of guilt are construed as asserting factual and legal truths. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. The prevailing decision-making model, with its ‘on-off’ formulation of guilt, is so broadly established that it is considered an axiom— but there is nothing natural or pre-political about it, nor about the derivati...
Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sop... more Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sophisticated articulation of Kant’s legal and political philosophy. While Kant’s thinking on metaphysics and ethics has received paramount attention in the academic discourse, his contribution to legal and political theory has been somewhat marginalized. One reason for Kant’s exclusion from the central canon of political and legal philosophy is the abstract and very complicated nature of Kantian writing on law and political power, most particularly in the Doctrine of Right. Another reason is the difficulties many writers have encountered in their attempts to reconcile Kant’s political and legal writing with his moral philosophy. Against this background, the novelty and importance of Force and Freedom cannot be overstated.
Alternative dispute resolution (ADR) refers to a variety of private processes for resolving dispu... more Alternative dispute resolution (ADR) refers to a variety of private processes for resolving disputes, independent of trial before a court of law. Economists are interested in ADR for two main reasons. First, from an ex post perspective, the manner in which disputes are resolved or decided in society affects the operation of the legal system and its cost-efficiency. Second, from an ex ante perspective, the manner in which rights are vindicated impacts primary behavior and investments in prospective dispute avoidance. The literature relating to the economic analysis of ADR can be divided into two facets: one facet is dedicated to the interests of litigating parties to make use of ADR mechanisms; the other is directed at the social interest in ADR. This chapter identifies the conditions under which parties will be incentivized to enter into ADR proceedings, and then moves on to examine the social welfare implications of ADR.
This study documents gender disparities in litigation‐cost rulings in Israel. It expands on the e... more This study documents gender disparities in litigation‐cost rulings in Israel. It expands on the existing literature on judicial bias in at least two important ways: by controlling for the merits of the cases and by focusing on civil litigation. The first improvement is methodological. The unique Israeli regime of litigation costs allows us to control for the merit of the cases, as well as for other typically unobservable variables, and thus to isolate and observe judicial bias. The second improvement on the existing literature on judicial bias involves focusing on outcome disparities in the civil (rather than criminal) justice system. Although numerous studies explore gender‐based disparities in the criminal justice sphere, only a very small number of studies explore such disparities in the civil arena. We found clear disparities in the allocation of litigation costs between men and women. Male plaintiffs who lost were ordered to pay the winners' legal fees more often than were losing women as sole plaintiffs or as part of all‐women plaintiff groups. Likewise, the fees women plaintiffs who lost a case were obliged to pay were less than those required of losing men, and women defendants who won cases received higher fee awards than similarly situated men.
Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars oft... more Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars often view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individualized evidence. But attempts to vindicate the suspicion or to dismantle it altogether have been largely unsuccessful. The aim of this Article is to provide a comprehensive answer to the statistical evidence debate. The Article offers a novel explanation for the suspicion toward statistical evidence, pointing to the epistemic inferiority of statistical evidence due to its lack of “Sensitivity” — namely, the requirement that a belief be counterfactually sensitive to the truth as a necessary condition of “Knowledge.” After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena. It claims that while the epistemic story provides an explanation for the suspicion toward statistical evidence, it does not provide a justification for this suspicion, for Sensitivity (like epistemology more generally) is not significant in the legal arena. Instead, this Article proposes an incentive-based vindication of the reluctance to use statistical evidence in court and points to the interesting interaction between the epistemic and the incentive-based approaches. After laying down the theoretical foundation, this Article demonstrates its descriptive potential. It demonstrates the proposed theory’s capacity to explain the prevailing legal doctrine and the rules governing the admissibility and sufficiency of statistical evidence across various categories, including DNA evidence and propensity-for-crime evidence as well as incriminating versus exonerating statistical evidence. On the prescriptive front, the Article provides criteria for legal reform and suggests that the admissibility of statistical evidence should be contingent on the type of offense or misconduct alleged against the defendant.
This article questions one of the most deeply-rooted taxonomies of modern legal thought, that div... more This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model's two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model's second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.
Confessions both hold a great promise and pose a grave danger. When the accused speaks against hi... more Confessions both hold a great promise and pose a grave danger. When the accused speaks against his interest and assumes responsibility for criminal actions this is viewed as a compelling sign of guilt. It is not, therefore, for naught that the confession has been crowned the "queen of evidence." Yet research conducted in the last few decades has shown that a substantial number of confessions are false, ranking the out of court confession high among the factors leading to the conviction of innocent people. The acceptance of DNA testing, has further substantiated this finding, igniting a renewed interest in out-of-court confessions. It is hard to assess the magnitude of social harm caused by the widespread and persistent resort to obtaining confessions, but one thing is evident from the vast literature on the matter: this evidentiary mechanism is currently overused, much beyond the optimal level. The reasons for this over-use are varied, among them the fact that confessions ...
The Israeli law governing cost and fee allocation diverges greatly from almost all other legal sy... more The Israeli law governing cost and fee allocation diverges greatly from almost all other legal systems in the Western world (with the exception of South Africa) in that cost allocation is left entirely in the discretion of the court. Although in practice judges usually follow the “loser pays rule”, (Uri Goren, Civil Procedure Issues (Tenth Edition, 2009) 744.) this is not mandated by law and judges can, and sometime do, diverge from it, ordering the winning party to pay the losing party’s litigation costs. In terms of the amounts awarded, some rhetorical transformation has taken place. Historically, courts tended to disregard the actual amounts expended by winning parties on the litigation when awarding costs, leading to their substantial under-compensation. In recent years, following the “constitutional revolution” which also constitutionalized civil procedure, those both within and outside of the judicial system have increasingly argued that litigation costs should be more in line with actual costs. But the extent to which the rhetorical transformation will infiltrate actual reality remains to be seen. In what follows we provide some information and insights concerning the rules and decisions regulating the allocation of trial costs and reflect on their impact on access to justice as well as on the behavior of the parties to the litigation.
The privatization of law model, the legal pluralism paradigm, and the literature on multicultural... more The privatization of law model, the legal pluralism paradigm, and the literature on multiculturalism are united in the assertion that the model of legal centralism, premised upon the monopolistic concentration of law production power in the hands of the state—lacks ...
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Papers by TALIA FISHER