Selected Works @ USC Gould School of Law

Democracy, Courts and the Information Order

Gillian K. Hadfield et al. — Mon, 22 Apr 2013 11:33:58 PDT

Conventional wisdom about civil litigation, both among scholars and political actors, holds that abuse of the legal process is common, that there is too much litigation, that it is “all about the money,” and that “a bad settlement is better than a good trial.” This constellation of attitudes that emphasize the economic function of law suggests that courts are an expensive conflict resolution mechanism of last resort and that their use would be minimized in a healthy market-based democracy. In this paper we apply a new sociological framework to understand the meaning and function of civil litigation in a democratic society. We focus in particular on the democratic function of the informational characteristics of litigation that require substantial disclosure and engagement between plaintiff, defendant and third parties. We do not look to the instrumental function of information transfer—in effecting deterrence, assessing compensation or enforcing underlying rights. Instead we examine the role courts play in the maintenance and attainment of a social information order—norms and legal rules governing the sharing and withholding of information that depend on and constitute particular status relationships between actors (Ryan 2006). Using interviews and surveys of family members of victims of 9/11 about their experiences with the Victims Compensation Fund (Hadfield 2005, 2008a) and other sources, we develop a theory of the lived experience of entitlement to information in in Anglo-American legal settings with suggestions of how these ideas might translate to civil law systems.

Are individuals' familiarity judgments diagnostic of prior contact?

Stacia Stolzenberg — Thu, 11 Apr 2013 09:41:41 PDT

The extensive eyewitness memory research literature has been restricted to memory for strangers. Although it is often assumed that eyewitnesses are more accurate identifying familiar than unfamiliar individuals, little is known about whether individuals' familiarity judgments are diagnostic of prior contact. Caucasian and Asian sophomores (N=139) in two small private high schools viewed yearbook pictures of (a) graduated students from their school who were seniors (fourth year) when participants were freshmen (first year) (familiar) and (b) unfamiliar individuals, and responded whether each was ‘familiar’. The design was completely crossed; familiar faces at each school served as unfamiliar faces at the other school. Based on d′ data, the cross-race effect resulted for familiarity judgments. Also, although individuals' familiarity judgments were diagnostic of prior contact, accuracy was low (mean hit rate=0.42; mean false alarm rate=0.23), rendering an eyewitness's report of having seen a perpetrator casually in the past of limited forensic value.

Legal Services Needed; Lawyers Need Not Apply

Gillian K. Hadfield — Tue, 12 Feb 2013 20:41:43 PST

Lawyers, Make Room for Non-Lawyers

Gillian K. Hadfield — Tue, 12 Feb 2013 20:38:40 PST

The Cost of Law: Promoting Access to Justice Through the Corporate Practice of Law

Gillian K. Hadfield — Fri, 16 Nov 2012 10:43:29 PST

The U.S. faces a mounting crisis in access to justice. Vast numbers of ordinary Americans represent themselves in routine legal matters daily in our over-burdened courts. Obtaining ex ante legal advice is effectively impossible for almost everyone except larger corporate entities, organizations and governments. In this paper, I explain why, as a matter of economic policy, it is essential that the legal profession abandon the prohibition on the corporate practice of law in order to remedy the access problem. The prohibitions on the corporate practice of law rule out the use of essential organizational and contracting tools widely used in most industries to control costs, improve quality and reduce errors. This keeps prices for legal assistance high by cutting the industry off from the ordinary economic benefits of scale, data analysis, product and process engineering and diversified sources of capital and innovation. Lawyers operating in law firms have not generated these benefits but they have appeared in settings, such as basic document completion, and countries, such as the U.K., where the corporate practice of law doctrine does not prevail. Eliminating restrictions on the corporate practice of law can significantly improve the access ordinary Americans have to legal help in a law-thick world.

Interviewing child witnesses: The effect of forced confabulation on event memory

Stacia Stolzenberg et al. — Fri, 02 Nov 2012 15:17:58 PDT

Age differences in rates of forced confabulation and memory consequences thereof were assessed using a recall task similar to real forensic interview procedures. Children viewed a target video and were tested with the same 18 questions immediately afterward and 1week later. Of the 18 questions, 12 were answerable; the 6 unanswerable questions referred to information not in the video. Participants in the voluntary confabulation condition had a "don't know" response option; those in the forced confabulation condition did not. Although 6-year-olds and 9-year-olds were equally likely to provide a response to an unanswerable question initially, 1week later 9-year-olds were significantly more likely than 6-year-olds to repeat their initial confabulated responses. These findings suggest that pressing child witnesses to answer questions they are initially reluctant to answer is not an effective practice, and the consistency of children's responses over time is not necessarily an indication of the accuracy of their eyewitness memory.

Courtroom Discussions about Children's Sexual Abuse: An Examination of Prior Conversations about Disclosures, Non-Disclosures and Perpetrator Statements to Children about Abuse

Stacia N. Stolzenberg — Fri, 02 Nov 2012 15:12:08 PDT

This study explored the content of courtroom conversations about children's prior discussions regarding sexual abuse. Sixty felony child abuse trial transcripts including child testimony and reviewing court opinions were collected from the Court of Appeal and from court reporters. Information was obtained from under Section 288 of the California Penal code (sexual abuse of a child under 14 years of age) filed in Los Angeles County from 1997 to 2001. For this study, transcript testimony was transcribed, extracted for the necessary information, coded, assessed for reliability, and analyzed. The findings indicate that conversations about children's prior disclosure conversations, non-disclosure conversations, and conversations with perpetrators are present in nearly all cases of alleged child sexual abuse, although they only represent about 8% of questions asked of children. These courtroom conversations appear to mimic effects found throughout other child testimony research: children are often limited in their responsiveness unless open ended questions are asked and they rarely provide detailed content unless prompted to do so. The findings revealed that overt accusations, references to children's motives for telling or not telling, and conversations with the perpetrator about abuse were infrequently discussed by attorneys when interviewing child witnesses about their alleged sexual abuse during trial testimony. This was surprising as these topics are often discussed in the empirical literature as important factors to consider when assessing children's credibility. In the present study, children were often asked about what they disclosed generally, what was said during abusive acts, and what was (or was not) disclosed during specific prior conversations. Further, our results reflect that children's ultimate credibility assessment, as assessed by the outcome of the trial, related to the presence of non-disclosure questions and not the presence of disclosure questions or conversations between the perpetrator and child; cases without non-disclosure questions consistently resulted in a conviction. This study provided a first step in assessing the content of courtroom conversations about children's prior discussions about sexual abuse. Implications and future directions for research are discussed.

Is the Role of Tort to Repair Wrongful Losses?

Gregory C. Keating — Fri, 05 Oct 2012 09:54:58 PDT

Recovering Rylands

Gregory C. Keating — Fri, 05 Oct 2012 09:51:50 PDT

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.” Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient. Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve. Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done. After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution.

The Priority of Respect Over Repair

Gregory C. Keating — Fri, 05 Oct 2012 09:48:50 PDT

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is — as the corrective-justice theorists rightly insist — a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.