Adverse Party Research Articles

Application of the Balance of Probabilities Standard of Proof in Judicial Practice

The paper describes key standards of proof used in common law countries: balance of probabilities and beyond reasonable doubt,applied in judicial practice in the UK, and the criminal standard beyond reasonable doubt, civil standard preponderance of evidence,and interim standard clear and convincing evidence, applied in judicial practice in the USA.
 The author identifies main conditions for application of the balance of probabilities standard in foreign judicial practice: 1) thisstandard is not merely a surmise based on guesses or suspicions; such surmise shall be based on certain evidence, which in total is notenough to establish presence or absence of a certain fact unequivocally; 2) the graver is an allegation, the less probable is the occurrenceof the fact, and hence it must be proved with harder evidence; 3) the less probable is an event, the more evidence there must be to provethat it might have truly occurred; 4) there is no direct connection between graveness of an allegation (consequences) and probability ofan event: some grave harmful conduct may be fairly common or, on the contrary, may happen rather infrequently.The paper identifies step-by-step implementation of standards of proof in practice of the European Court of Human Rights(ECHR): at the first stage one can find references to standards of proof only in cases against the United Kingdom; at the second stagethere are judgments made on complaints against other countries, though in such judgments the ECHR does not assess standards ofproof, but merely reflects that those have been applied by national courts. At the third (contemporary) stage the ECHR only distingui -shes between application of standards of proof in criminal and quasi-criminal cases.The author concludes on the basis of study of empirical data that the balance of probabilities standard of proof is already appliedin the national judicial practice, however principles of its application in the judicial practice have not been developed yet. It is notedthat though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradictthe concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliablenot per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions ofboth sides are impeccable, and evidence for unequivocal conclusions is not enough.

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

The notion of “acts harmful to the enemy” under international humanitarian law

AbstractThis article provides a legal analysis of the largely uncharted notion of “acts harmful to the enemy” under international humanitarian law, which reconciles the humanitarian need to grant special protection to medical services (medical personnel, units and transports) in the interests of the wounded and sick with the military necessity to remove it when acts are committed contrary to good faith and for hostile purposes or with effects which harm the adverse party. The meaning of the notion is clarified by primarily looking into the legality of an attack against land-based medical services by the aggrieved party to the conflict as a consequence of harmful acts. It concludes with specific recommendations on how to interpret the law governing such an attack, considered prima facie lawful, on a hospital.

Ortiz and the Problem of Intrabranch Litigation

Do government appeals from the Court of Appeals for the Armed Forces represent a justiciable case or controversy under Article III of the Constitution? This paper analyzes the Supreme Court’s jurisprudence on Article III’s adversity requirement, arguing that government appeals from the CAAF may represent a non-justiciable instance of intrabranch litigation. Part I provides background on the structure and history of the CAAF and introduces the problem posed by government appeals from this tribunal to the Supreme Court. Part II explores the Court’s jurisprudence, as well as current scholarship, on intrabranch litigation and the requirement of adverse parties. Finally, Part III turns to Ortiz v. United States to examine how the Court’s recent characterization of the military justice system may reconcile the doctrinal and theoretical issues presented in the preceding sections. Although the Court in Ortiz did not address this broader jurisdictional issue, the majority’s focus on the judicial nature of the CAAF may provide a path to finding a justiciable controversy in government appeals from the CAAF.

The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.

Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system. In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments. Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.

Law Trumps Hate? Enforcing Legal Constraints on Use of Force in Armed Conflict in the Face of Literal, Interpretive and Implicatory Denial

The rise to power of champions of post-truth politics attests to a social climate in which facts are devalued while sentiment is given great currency. In this environment, there is cause for concern that both facts and norms will be set aside when yielding unpopular outcomes. Such concerns are especially warranted when it comes to holding state servicemen accountable for alleged violations towards persons affiliated with the adverse party to an armed conflict. Promoting accountability in such cases has always posed a challenge and will likely prove all the more difficult in a state of widespread indifference to the truth. With this threat to the rule of law looming in the background, the article looks to experiences from the Israeli-Palestinian context to draw cautionary lessons and raise a call for vigilance. Through analysis of case studies in which Israeli troops allegedly applied unlawful force against Palestinians, it traces a corrosive process whereby regular recourse to ill-founded and unwarranted denial has undermined the enforcement of international humanitarian law and related rules in the occupied territory. Noting that denial persists even in the wake of seemingly compelling evidence furnished by advancing technologies, the article contends that it has fostered a culture of impunity that in turn threatens to bred widespread disrespect, indifference and alienation towards the law and towards its underlying values. The article ultimately advocates for steps to be taken to offset this dangerous outcome.

Can the Court Order Deletion of Portions of Evidence Affidavitt?

According to Section 137 of the Indian Evidence Act, the examination of a witness by the party who calls him is called his examination-in-chief; the examination of a witness by the adverse party is called his cross-examination; and, the examination of a witness, subsequent to the cross examination by the party who called him, is called his re-examination. It is settled law that once the affidavit in lieu of examination-in-chief is filed, it partakes the character of the examination-in-chief of the concerned witness. The purpose of Order XVIII, Rule 4 of the Civil Procedure Code, 1908 is to ensure that there is speedy trial of the case and the time of the Court is not wasted in recording lengthy examination-in-chief. The contents of an Evidence Affidavit can be segregated into the following four broad categories: (i) matters that are relevant and are within the personal knowledge of the deponent; (ii) matters that are possibly relevant but are not within the personal knowledge of the deponent; (iii) matters that are neither relevant nor are within the personal knowledge of the deponent; and (iv) statements in the nature of legal submissions, arguments and pleadings. So far as statements in the nature of legal submissions, arguments and pleadings are concerned, these are clearly beyond the pale of examination-in-chief. Matters which are relevant and are within the personal knowledge of the deponent indisputably form an intrinsic part of the examination-in-chief. The statements which are only possibly relevant, whether based on personal knowledge of the deponent or otherwise, are within the pale of examination-in-chief, because the issue of relevancy is always subject to the final arguments at the final hearing of the suit. But the material which is completely extraneous and is entirely outside the domain of the personal knowledge of the deponent cannot possibly be part of the testimony of the deponent examined in chief. It is permissible and is often necessary for a Court, with a view to expedite the trial and to avoid a needlessly protracted cross examination on irrelevancies and matter that is not ‘evidence’ to order that any such material that does not constitute evidence be struck off or be ordered or directed to be ignored without fear of adverse consequence.

THE PROTECTION OF WOMEN IN ARMED CONFLICT

<p><em>The vulnerable groups often become the victim of adverse party of armed conflict. Women is included in there. Women in armed conflict are affected directly or indirectly by the conflict, including gender based violence like rape, forced impregnation, or forced prostitution. In addition, armed conflict also affects the gender relation related to women, for example women become the breadwinner as the result of lost of husband due to the conflict. this research aimed to discuss on the impact of armed conflict on women, how international humanitarian law protects women in armed conflict and how the implementation of that protection.</em></p>

Non-Contentious Jurisdiction and Consent Decrees: A Reply to Professors Pfander & Birk

Professors James E. Pfander’s and Daniel D. Birk’s bold reinterpretation of III’s justiciability requirements in their recent article, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 YALE L.J. 1346 (2015), challenges the widely accepted principle that federal courts may adjudicate only live disputes between adverse parties. Pfander and Birk provide a fascinating analysis of the various roles that federal judges and courts have played throughout American history, and offer an elegant reinterpretation of the distinction between cases and controversies under III. While many of their conclusions are sound, this Response contends that their proposed reinterpretation of III goes too far. Even assuming that III grants federal courts non-contentious jurisdiction to hear certain ex parte matters, it should not extend so far as to allow federal courts to become or remain involved in matters where all interested parties affirmatively agree and seek the same relief. In other words, despite their historical pedigree, III should not be read as conferring non-contentious jurisdiction upon federal courts to enter consent decrees. This Response begins by questioning the utility of Pfander and Birk’s primary methodology — a largely historical analysis — in the context of III. It goes on to argue that Pfander and Birk erred in concluding that consent decrees are a valid exercise of the judicial power under III. The historical and current practices from which they derive their conclusions are susceptible to an alternate analysis: for a case or controversy to exist, the interested parties must not have not reached a complete accord on all issues in a legal dispute. Indeed, even if one accepts Pfander and Birk’s arguments, consent decrees are not justiciable under their own proposed conception of non-contentious jurisdiction. This Response concludes by demonstrating that their proposed distinction between “cases” and “controversies” can have profound effects on Supreme Court jurisdiction that may, in themselves, constitute a basis for rejecting or modifying their proposal.

Military Objectives in International Humanitarian Law

This doctoral thesis, now published as a monograph, provides a thorough analysis of one of the most crucial concepts of the modern law of armed conflicts (LOAC), namely military objectives. The concept is crucial because the targeting of such objectives is directly linked to the principle of distinction, which in turn is a cardinal tenet of LOAC. It requires that the belligerents must always make the distinction between civilian objects and persons on the one hand, and military objectives (persons and objects) on the other, and attack only the latter to the exclusion of the former (Article 48 of the Additional Protocol I of 1977 (AP I)). Thus, the concept of military objectives is cast amidst the protection of civilians during the conduct of hostilities (whereas Geneva Convention IV of 1949 concerns their protection outside the context of combat action). It stands to reason that this protection is an essential part of the modern law of armed conflicts. Moreover, it is only superficially surprising that AP I was the first treaty to generally define military objectives. In the nineteenth century, the civilian hardly appeared in the LOAC. It was at that time simply taken for granted that civilians were outside the reach of military action; they would not participate in it and concomitantly would be spared from attacks. The social environment of the past was such that military action and civilian presence were reasonably distinct: the battlefield was the pitch for military action, other areas were bluntly aloof from such action. The twentieth century completely changed these parameters. Air power allowed a belligerent to wreak heavy havoc into all the lands of the adverse party. Industrialization and modernization of the army made civilian objectives relevant from a military standpoint, in particular industrial plants. Finally, the difference between civilians and military personnel was blurred, since civilians participated in a variety of forms to military operations (guerilla warfare is but one of the most emblematic forms of such participation). All these factors, among others, explain that the majority of victims in modern armed conflicts are civilians, not rarely up to a proportion of 90 per cent.1 The question of military objectives remains also highly relevant when viewed from another perspective. It is a concept often applied in modern military campaigns, where air power is of the essence. However, it gives rise to uncertainties at least on two accounts. First, the definition is open-ended and contextual; it must be operationalized in single cases and this gives rise to legal uncertainty. Indeed, Article 52, § 2, AP I, the cardinal provision in this regard, provides only for criteria which have to be applied by the belligerent to single sets of facts in order to determine if an object is a military objective. Second, there are marked differences of interpretation between the US and the continental European conceptions of military objectives, especially in certain areas of targeting such as ‘economic targets’ (i.e. targets chosen for their economic value to the war-sustaining effort). Notwithstanding the relevance of the concept of military objectives, there is hardly a wealth of monographic treatment of the subject matter. Indeed, no monograph in the English language was directly and exclusively devoted to that notion before the present publication. This new monograph is thus more than welcome.

Rhétorique et philosophie dans l’Apologie d’Apulée: fonction et valeur de la première partie du discours (§ 4-25), et du développement sur le dentifrice (§ 6-8)

The present paper deals with the rhetorical nature of the first part of Apuleius’ speech Pro se de magia (§§ 4-25), the importance of which is commonly minimized. This part is better accounted for as a ‘probatio uitae’, through which the orator intends to prove his innocence by exposing the excellence of his past life and character. The process matches Apuleius’ intention to identify his case with that of philosophy itself confronted to the hatred of uneducated and malevolent accusers. The passage on toothpaste (§§ 6-8) in particular lays the foundations for the rhetorical strategy of the entire speech. The defendant fashions himself as the herald/hero of philosophy and culture, whereas the accusers are depicted as barbarous, ignorant and evil creatures. The final snippet featuring the crocodile and his fellow-bird identifies the adverse party with animals (as opposed to the defendant’s humanity) in a disparaging manner not devoid of threatening undertones.

Enhancing conflict resolution through an AHP-based methodology

Opposing interests, bounded rationality and decisional bias may severely hinder conflict resolution. When the commitment for an agreement is high, opponents can resort to the intervention of a third party, such as a mediator. We propose a methodology to enhance conflict resolution, which is based on the analytic hierarchy process (AHP) and takes into account the psychological attitudes of the conflicting parties. The AHP Technique for Highly Eligible Negotiation Agreements (ATHENA) supports a third party in selecting, among potential negotiation agreements, those proposals having the best chances to be accepted by adverse parties. We illustrate an implementation of ATHENA that involved 160 students simulating 'Union versus Management' negotiations. A control group of 40 couples negotiated without any decision support system, while the other 40 couples were supported by ATHENA. The results show that the procedure implementation outperformed unsupported negotiation by increasing the number and the fairness of agreements.

The Origins of the Oral Deposition Under the Federal Rules: Who's in Charge?

This paper traces the origins of the oral deposition in the Federal Rules of Civil Procedure (“Federal Rules”) with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee’s decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery. A striking attribute of the modern American deposition is that opposing counsel conduct the questioning in the absence of a judicial officer. The Advisory Committee that drafted the 1938 Federal Rules considered a proposal to provide deponents (both party witnesses and non-party witnesses) with the option of requesting a master to rule on the admissibility of evidence at the pretrial examination. According to archival sources, members of the Advisory Committee concluded that the systemic disadvantages of that proposal outweighed the advantages. I describe the historical origins of three salient features of the deposition: the near-absence of the rules of evidence; the presence of an “officer in charge” who has no power the rule on the admissibility of evidence; and the breadth of the permitted scope of inquiry. I discuss why the term “officer” is misleading: the examination is conducted entirely by adverse parties in the absence of a judge or a judge-like figure. The officer in charge is simply a stenographer or notary public who swears in the deponent and records the testimony; he or she exercises no adjudicatory function.

Theories of Change and Transfer Strategies in Peacebuilding Practice

Theories of Change and Transfer Strategies in Peacebuilding Practice

The Adversarial Myth: Appellate Court Extra-Record Factfinding

The United States’ commitment to adversarial justice is a defining feature of its legal system. Standing doctrine, for example, is supposed to ensure that courts can rely on adverse parties to present the facts courts need to resolve disputes. Although the U.S. legal system generally lives up to this adversarial ideal, it sometimes does not. Appellate courts often look outside the record the parties developed before the trial court, turning instead to their own independent research and to factual claims in amicus briefs. This deviation from the adversarial process is an important respect in which the nation’s adversarial commitment is more myth than reality. This myth is problematic for many reasons, including the fact that it obscures the extent to which some of the most significant cases the Supreme Court decides, such as Citizens United v. FEC, rely upon “facts” that have not been subjected to rigorous adversarial testing. The adversarial myth exists because the U.S. legal system’s current procedures were designed to address adjudicative facts — facts particularly within the knowledge of the parties — but many cases turn instead on legislative facts — more general facts about the state of the world. Recognizing this distinction between adjudicative and legislative facts helps identify those cases in which existing practices undermine, rather than promote, adversarial justice. This Article concludes with suggestions for reform, including liberalizing standing doctrine when legislative facts are at issue. If courts are going to turn to nonparties for help in resolving disputes of legislative fact, it is better that they be brought into the process earlier so the factual claims they offer can be rigorously tested.

Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War

AbstractThe treatment of prisoners of war (POWs) has been an issue of concern to all those engaged in armed conflict for centuries. The problem of how to deal with POWs is not a new one and their treatment is a question with which the laws of war have been particularly concerned. Not all persons captured in the course of armed conflict are entitled to POW status. Generally, only persons recognized as "combatants" in accordance with international humanitarian law are entitled to POW status upon capture by an adverse party in armed conflict. Under the Third Geneva Convention of 1949, POWs are the responsibility of the capturing power from the moment of capture, and not of the individual or military units, which actually capture them. POWs must at all times be humanely treated and the Third Convention provides clear rules in relation to their camps, quarters, food and clothing. The principles embodied in the Islamic Law of War also provide a comprehensive framework for the protection of POWs. Nevertheless, there are some important differences between Islamic Law of War and the principles contained in the Geneva Conventions and Hague Regulations, especially in relation to triggering the application of the laws of war and the concept of armed conflict. What is most striking is the similarity in the protection provided by both legal frameworks. However, the single biggest challenge to both regimes remains the implementation of the relevant principles.

Let's Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations

This study quantitatively evaluates the incidence and magnitude of errors made by attorneys and their clients in unsuccessful settlement negotiations. The primary study analyzes 2,054 contested litigation cases in which the plaintiffs and defendants conducted settlement negotiations, decided to reject the adverse party's settlement proposal, and proceeded to arbitration or trial. The parties' settlement positions are compared with the ultimate award or verdict, revealing a high incidence of decision‐making error by both plaintiffs and defendants. This study updates and enhances three prior studies of attorney/litigant decision making, increasing the number of cases in the primary data sets more than threefold, adding 72 explanatory variables from 19 classes, applying a multivariate analysis, presenting an historical review of error rates during the 1964–2004 period, and comparing the primary study error rates with error rates in cases where the parties are represented by attorney‐mediators. Notwithstanding these enhancements, the incidence and relative cost of the decision‐making errors in this study are generally consistent with the three prior empirical studies, demonstrating the robustness of the earlier works by Samuel Gross and Kent Syverud, and Jeffrey Rachlinski. The multivariate analysis, moreover, shows that the incidence of decision‐making error is more significantly affected by “context” variables (e.g., case type and forum) than by “actor” variables (e.g., attorney gender and experience level).

Law & Psychiatry: The New Lie Detectors: Neuroscience, Deception, and the Courts

Law & Psychiatry: The New Lie Detectors: Neuroscience, Deception, and the Courts

Perspectives on State Party Arbitration: The Future of BITs - The Practitioner's Perspective

The practitioner may applaud recent developments in BIT-based arbitration or bemoan them. But whether as an advocate for the State or for the investor, the next few years of BIT formulation, negotiation and arbitration will be crucial. Among the procedural issues which future BITs will need to address is the question of whether most-favoured-nation clauses (MFNs) apply to procedural rights allowing a party to avail itself of the international arbitration mechanism contained in one BIT entered into by the State adverse party, even if not contained in the BIT applicable to the substantive dispute. Furthermore, there is the informed choice between ICSID and UNCITRAL ad hoc Rules arbitration by means of a ‘fork in the road.’ The current proposals for amendment to the UNCITRAL Rules are notable here. These developments may influence the role of future BITs in shaping decisions respecting ‘umbrella clauses’ and the reach and content of ‘customary international law.’ With respect to future concerns respecting the substantive protections in BITs, a new generation of BITs is partly meant to replace pre-existing BITs between the same two countries, but which will in future exist side by side with old-generation BITs. On another level, namely the legitimation of transforming a contract claim into a treaty claim, the message for future drafting of BITs is to use greater precision in scoping out the obligations to which treaty arbitration is meant to apply. The same drafting issues and uncertainty affect the conflicting decisions regarding Fair and Equitable Treatment (F&ET), and whether an international minimum standard is meant to apply or a plain meaning approach. Finally, what does the future hold for costs in investment arbitration? There is a lack of full harmonization between legislation allowing for party agreements stipulating cost allocation, arbitration rules which afford tribunal discretion to allocate costs, and legislation or decisional law of a subsequent enforcing court which may point in yet another direction. Ultimately, absent party agreement, the arbitral tribunal should or must achieve greater transparency toward the parties respecting the tribunal's understanding of its own rights, duties and discretion, and not simply ‘rest on’ the discretion or latitude which may be built into the rules or legislation. The drafting of a particular BIT may not be able to address the issue of cost recovery. However, the absence of any rhyme or reason in cost awards may make States think twice about entering into such agreements. And it may make investors think twice about invoking them.