Contemporary Court Research Articles

Beyond the Courtroom Workgroup: Caseworkers as the New Satellite of Social Control

Many jurisdictions nationwide are faced with overcrowded jails, backlogged court dockets, and high rates of recidivism for mostly nonviolent offenders. To address these complex problems, law enforcement officials have institutionalized alternatives to incarceration programs, including work furloughs, electronic monitoring, and treatment courts. These recent trends in legal reform are designed to reduce and prevent criminal behavior by helping to reintegrate defendants back into their local communities. One aspect that has been largely unaddressed in prior research is that jail‐alternative programs are primarily staffed by caseworkers with outside nonprofit agencies. This important group of nonlegal actors plays a pivotal role in crafting decisions to divert low‐level offenders from the criminal justice system; few studies, however, explore the organizational contexts surrounding caseworkers' everyday decision‐making practices. In response, I draw upon ethnographic data to analyze the ways that pretrial release caseworkers in a California county evaluate defendants' entitlement to release on their own recognizance. The results of this study suggest that caseworkers exercise discretion beyond the traditional power structure of the courtroom workgroup. I conclude that caseworkers emerge as the new satellite of social control in contemporary courts.

The politics of tactility: Walter Benjamin materialized by way of Frederick Wiseman's Titicut Follies

In 1968, Frederick Wiseman's documentary film Titicut Follies (shot in a prison hospital for the criminally insane) became the first and only American film to be banned for reasons other than obscenity or national security. Turning to contemporary reviews and court documents, this essay argues that the singular status of the film begins with the sensational impact it has on viewers' bodies. Walter Benjamin's ideas on cinema further this argument, including their affirmation of the distracted viewer that cinema can effect by way of a tactile viewing, a viewing that removes the distance enjoyed by the observer, replacing it with an intensified sensational connection between viewer and viewed. What is more, Titicut Follies demonstrates that documentary, as a genre, can be the Benjaminian historical fragment par excellence—the concretization of history that allows it to collide with the present in shocking montage to break the insidious ideology of progress. Bringing Benjaminian ideas of cinema and history together allows us to posit dialectic as relentless horizontal montage, rather than teleological progress, and further to show Titicut Follies as a rare instance of a film that threatens to reorganize the perceptual field and even to reorganize subjectivity. Indeed, the singular response by the law, witnessed in its lashing and contorted efforts to contain the force of the film, speaks most clearly to this threat.

Interpretive Sovereignty: A Research Agenda

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties -- originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages -- present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians' understanding of treaty terms and, more generally, to promote the interests of Indian nations. While this liberal approach to treaty interpretation has secured a number of important Indian rights in the courts, it does not necessarily reflect the ways in which Indians actually perceived treaty terms in their own languages and cultures. Deeper investigation of treaty law reveals, however, that Indians have long been interpreting treaties for themselves. From their earliest encounters on the negotiating field to recent advocacy in the courts, Indians have, out of necessity or strategy, articulated what treaty provisions mean to them. Here I identify this much-overlooked practice as and define it as the interpretation of treaties through the lens of tribal cultures, and more particularly, through tribal languages. The practice of interpretive sovereignty has particularly great potential today as a tribal language revitalization movement sweeps Indian Country. Interpretive sovereignty may have the power to transform historical understandings of treaties and help tribes forge contemporary legal approaches that reflect tribal norms and values. Beyond federal Indian law, attention to the role of language differences can inspire reflection on the interpretation of other legal texts. For these reasons, this Essay calls for research into the role of tribal languages in treaty interpretation and begins to contemplate some of the challenges associated with such work.

Advocates unlimited: thenumerus claususand the college of justice in Scotland

The college of justice established in Edinburgh in 1532 provides an interesting case study of the operation of the numerus clausus rule by which a limit was placed on the number of advocates permitted to practise there. Such a rule is found in a number of European jurisdictions; however in Scotland's central court it was unusually short-lived, and lasted for less than two decades. The focus of this article is on why the rule was so briefly employed and what consequences this had for the legal profession, the court and wider Scottish society. As well as analysis of the contemporary court record, and consideration of the growth of the legal profession subsequent to the relaxation of the rule, discussion of some of the relevant considerations is informed by a debate on the same issue to be found in some inferior courts in the eighteenth century.

Basic at Twenty: Rethinking Fraud-on-the-Market

Twenty years after being decided, Basic Inc. v. Levinson is being interpreted and applied in interesting, sometimes jarring, ways. This paper looks at Basic's presumption of reliance in fraud-on-the-market cases and the ways in which contemporary courts are addressing such issues as (1) the level of efficiency that is necessary for the presumption to apply; (2) the role of market price distortion and loss causation in the class certification decision; and (3) the connections between materiality and reliance (Basic's two separate issues) in both class certification and on the merits. Basic set in motion much of the resulting confusion by making more of reliance - and market efficiency - than was needed, and then paying too little attention to the joint risks of indeterminacy and disproportionality in the liability threat created by fraud-on-the-market lawsuits. Had it taken a different route, or better explained the route it was taking, we might have seen early on that class recovery is better suited as a deterrence mechanism than a compensatory device. That makes a stringent approach to reliance, causation or class certification unnecessary, but also calls into question the idea that each investor has a right to recovery by trading at a distorted price. Instead, the law headed in precisely the opposite direction.

A Plan for Kenilworth Castle at Longleat

Abstract Recent investigation of a 16th-century plan in the archive at Longleat has revealed it to show anambitious proposal for a lodging range across the entrance to the inner court of Kenilworth Castle. The plan makes a considerable addition to the very small number of English architectural drawings of that early date. This article identifies its function and its architectural character – that of the contemporary French court. It dates it from patronal circumstances to about 1566 to 1568, and attributes it by stylistic and graphic analysis to the Office-of-Works architect Henry Hawthorne, architect of the great house at Theobalds for Elizabeth I's chief minister, William Cecil, Lord Burghley.

Win a Dream Date with James Joyce

Would you describe yourself as lonely? Do you find it dif ficult to meet people? Is there no one who seems to under stand you? If so, there is hope for you in modern literature, for all of your dating problems are addressed in the works of that moist moonful date man aver (FW 347.07), James Joyce. With some understanding of his groundbreaking work in contemporary court ship, you too can meet that special someone. The proposition is not so ludicrous as it first seems. Consider the following personals ad found in the Toronto newspaper The Globe and Mail for 27 September 1997:

Indians 78, Washington State 0: Stories about Indians and the Law

In the 1970s Washington State lost a series of legal cases related to Native Americans. These cases exemplify the need for knowledge of federal Indian law-but such knowledge, out of context, is insufficient. Key aspects of federal Indian law are hard to accept because of conflicting stories that Americans already believe. The authors discuss the importance of stories and review commonly believed stories that block acceptance of federal Indian law. They then discuss basic principles of Indian law and distill four questions to help determine tribal jurisdiction. The authors review the Marshal trilogy—three Supreme Court cases that set the foundations of modern Native American law—and show how the legal principles play out in an analysis of three contemporary court cases.

Overruled? Legislative Overrides, Pluralism, and Contemporary Court—Congress Relations

Overruled? Legislative Overrides, Pluralism, and Contemporary Court—Congress Relations

Denis Fonvizin and the Concept of Nobility: An Eighteenth-century Russian Echo of a Western Debate

The article examines the contribution made by Denis Fonvizin, one of the major men of letters of the age of Catherine the Great, to debate about the status and function of the eighteenth-century Russian nobility. This contribution is set in the context of changes in the balance between the nobility’s obligations to the state and the privileges it enjoyed and in the context of contemporary court politics. Aware of western debates on the subject, Fonvizin approves of engagement by the nobility in commerce and prefers personal merit to heredity as a criterion for ennoblement and retention of noble status. He uses his conception of nobility (which is bolstered by the notions of virtue and honour that he draws from foreign sources) to perpetuate a sense of obligation among the Russian educated éite even though that élite had in 1762 ceased to be formally required to serve. At the same time he begins in effect to redirect the allegiance of the élite away from the state and towards the nation.

Overruled?: Legislative Overrides, Pluralism, and Contemporary Court–Congress Relations

Overruled?: Legislative Overrides, Pluralism, and Contemporary Court–Congress Relations. By Jeb Barnes. Stanford: Stanford University Press, 2004. 219p. $50.00. Students of the interaction between the judicial and elected branches of government typically assume that each branch can understand the other's intentions and capabilities. In classic separation-of-power models, justices do not craft opinions they know will be overridden, and Congress does not pass laws likely to be struck down or interpreted in a manner hostile to Congress's interests. In reality, the assumption of complete information is tenuous: The transmission of information between the branches is less than perfect. Members of Congress lack the capacity to perfectly anticipate future judicial decisions, and courts cannot anticipate how elected officials will respond. Hence, congressional goals are regularly thwarted by the courts, and on occasion, judicial attempts at policymaking are overruled by Congress.

A Theory of Self-Enforcing Indefinite Agreements

All contracts are incomplete. But incomplete contracts differ along several key dimensions. Many contracts are incomplete because parties decline to condition performance on future states that they cannot observe or verify to courts. In these cases, the incompleteness is exogenous to the contract. Other agreements, however, appear to be incomplete in the sense that parties decline to condition performance on available, verifiable measures that could be specified in the contract at relatively low cost. Thus, incompleteness is endogenous to these agreements suggesting that the parties had other reasons for leaving the terms in question unspecified. Traditional contract law doctrine appears to track this distinction. One of the core principles of contact law is the requirement of definiteness. An agreement will not be enforced as a contract if it is uncertain and indefinite in its material terms. It is widely believed, however, that the indefiniteness doctrine is largely ignored by contemporary courts. But a study of the contemporary case law on indefinite contracts reveals some striking facts. In literally dozens of cases, American courts dismiss claims for breach of contract on the grounds of indefiniteness, often without granting any relief to the disappointed promisee. This evidence raises a fundamental question: Why do parties write deliberately incomplete agreements in the shadow of a robust indefiniteness doctrine? One hypothesis is that these agreements may be self-enforcing. But most of the recently litigated cases do not appear to be self-enforcing in the traditional sense. Rather, most are isolated transactions between strangers trading at arms length. Recent work in experimental economics suggests, however, that the domain of self-enforcing contracts may be considerably larger than has been conventionally understood. A robust result of these experiments is that a significant fraction of individuals behave as if reciprocity were an important motivation (even in isolated interactions with strangers) while a comparable fraction react as if motivated entirely by self interest. These experiments support a theory that predicts that deliberately incomplete contracts that rely on self-enforcement through reciprocal fairness are more efficient than the alternative of more complete, legally enforceable agreements. The potency of reciprocal fairness as a method of self-enforcement explains (and justifies) the resiliency of the common law indefiniteness doctrine in the face of a contemporary academic consensus in favor of expanding the scope of legal regulation.

A Theory of Self-Enforcing Indefinite Agreements

All contracts are incomplete. But incomplete contracts differ along several key dimensions. Many contracts are incomplete because parties decline to condition performance on future states that they cannot observe or verify to courts. In these cases, the incompleteness is exogenous to the contract. Other agreements, however, appear to be incomplete in the sense that parties decline to condition performance on available, verifiable measures that could be specified in the contract at relatively low cost. Thus, incompleteness is endogenous to these agreements suggesting that the parties had other reasons for leaving the terms in question unspecified. Traditional contract law doctrine appears to track this distinction. One of the core principles of contact law is the requirement of definiteness. An agreement will not be enforced as a contract if it is uncertain and indefinite in its material terms. It is widely believed, however, that the indefiniteness doctrine is largely ignored by contemporary courts. But a study of the contemporary case law on indefinite contracts reveals some striking facts. In literally dozens of cases, American courts dismiss claims for breach of contract on the grounds of indefiniteness, often without granting any relief to the disappointed promisee. This evidence raises a fundamental question: Why do parties write deliberately incomplete agreements in the shadow of a robust indefiniteness doctrine? One hypothesis is that these agreements may be self-enforcing. But most of the recently litigated cases do not appear to be self-enforcing in the traditional sense. Rather, most are isolated transactions between strangers trading at arms length. Recent work in experimental economics suggests, however, that the domain of self-enforcing contracts may be considerably larger than has been conventionally understood. A robust result of these experiments is that a significant fraction of individuals behave as if reciprocity were an important motivation (even in isolated interactions with strangers) while a comparable fraction react as if motivated entirely by self interest. These experiments support a theory that predicts that deliberately incomplete contracts that rely on self-enforcement through reciprocal fairness are more efficient than the alternative of more complete, legally enforceable agreements. The potency of reciprocal fairness as a method of self-enforcement explains (and justifies) the resiliency of the common law indefiniteness doctrine in the face of a contemporary academic consensus in favor of expanding the scope of legal regulation.

Federalism in the Taft Court Era: Can it be 'Revived'?

This article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as reviving pre-New Deal principles. The article concludes, however, that any such is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the 20th Century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of this ideal also significantly undercut state power, because the dual sovereignty invited the pre-New Deal Court to prohibit states from regulating the exclusively federal area of interstate commerce. For these reasons the modern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as separated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre-New Deal Court. Second, the pre-New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre-New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never understood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre-New Deal Court's common law authority was even regarded as more fundamental than Congress's claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins fundamentally transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court's authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre-New Deal Court, like the country generally, regarded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic Federalism was typically conceived as the problem of reconciling centralization with self-government. Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American political culture when the crisis of the New Deal legitimated the national government's authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court's common law authority, this transformation of Congress's legitimacy undercut the Court's ability to second-guess Congress's vision of national priorities when reviewing the limits of congressional power. Fourth, the pre-New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural principles, like the limits of congressional power, in terms of the individual rights affected by federal legislation. Because the Lochnerism of the pre-New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sensitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply distinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre-New Deal Lochnerism. The revival of pre-New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antagonistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsupported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process.

Federalism in the Taft Court Era: Can It Be "Revived"?

Author(s): Post, Robert | Abstract: This article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as reviving pre-New Deal principles. The article concludes, however, that any such is highly implausible. It offers four reasons for this conclusion.First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the 20th Century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of this ideal also significantly undercut state power, because the dual sovereignty invited the pre-New Deal Court to prohibit states from regulating the exclusively federal area of interstate commerce. For these reasons the modern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as separated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre-New Deal Court.Second, the pre-New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre-New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never understood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre-New Deal Court's common law authority was even regarded as more fundamental than Congress's claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins fundamentally transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court's authority to impose structural limitations on congressional power was also profoundly altered.Third, the pre-New Deal Court, like the country generally, regarded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic Federalism was typically conceived as the problem of reconciling centralization with self-government. Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American political culture when the crisis of the New Deal legitimated the national government's authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court's common law authority, this transformation of Congress's legitimacy undercut the Court's ability to second-guess Congress's vision of national priorities when reviewing the limits of congressional power.Fourth, the pre-New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural principles, like the limits of congressional power, in terms of the individual rights affected by federal legislation. Because the Lochnerism of the pre-New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sensitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply distinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre-New Deal Lochnerism.The revival of pre-New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antagonistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsupported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process.

Neurolitigation: A perspective on the elements of expert testimony for extending the Daubert challenge

Scientific expert witness testimony has the potential for affecting most court decisions in civil and criminal proceedings. Since experts were first utilized in English courts beginning in the 14th century, most contemporary courts struggle with seeking a balance between plaintiff and defense counsel allowing each party its day in court while taking into account the work which other courts have done previously in determining the admissibility of expert witness testimony. When these challenges present themselves in the courtroom, often other courts have approached these identical issues, many in proceedings involving the same expert(s). Confronted with these challenges, trial judges want to understand whether a new Daubert hearing must be held, deal with the issue from a clean slate approach or whether they must reinvent the proverbial wheel. Given these dilemmas, this exposition is based within a heuristic approach that will focus on the consideration of comprehensive data inclusion from an evidentiary foundation as it applies to expert witness testimony admissibility in neurolitigation. While the evidential force of FRE 702 specifically applies to admissibility of scientific evidence, it makes sense that along with scientific, objective data, inclusion of non-medical and other data in forming and admitting expert opinions, have mutual bearing upon the validity of opinions arrived at through neuropsychological assessment. It is these multi-data that should be factored into account when applying the Federal Rule of Evidence 702 scientific admissibility standard. Data from other relevant sources is just as vital as data obtained from objective measures, and co-exists with objective data. Without the integration of this information into resulting diagnostic data and opinions, one's methodology is open to scrutiny and can willfully be characterized as engaging in "junk science". Specific, pragmatic issues are discussed in order to avoid the plausible "junk science" question and to ultimately arrive at a factual and evidenced-based admissibility and reliability determination for the courts. Given the current standard, this article proposes an inclusionary method in neurolitigation as it would necessarily apply to Federal Rule of Evidence 702 which would extend to the integration of data outside medical and scientific information bases to establish accurate opinions for the trier of fact. In so doing, neuropsychological test data, non-medical data and expert testimony would be strengthened through inter-data consistency.

Federalism and Freedom

The argument for devolution of power to state and local governments in contemporary Supreme Court cases regularly relies on claims about the virtues of federalism as a means of maintaining individual liberty. This article explores the plausibility of the argument that supplanting federal with state authority is likely systematically to protect individual liberty. The article argues that if there is a viable argument for "federalism as freedom," it must go beyond the sense that two governments are more repressive than one or that the federal government is more inclined to curtail liberty than is a state or local authority. The plausible claims rely on the abilities of autonomous state governments to provide a competing source of norms and to allow escape from oppressive laws. The availability of sanctuaries in other states is a function of rights of interstate travel and territorial limitations on state jurisdiction, which themselves require federalized constraints on state and local autonomy.

Servants of Fortune: The Swedish Court between 1598 and 1721

In what has been seen as an age of increasing bureaucratisation, did it matter who was close to the monarch? Since the monarch embodied supreme wordly power, the way in which daily life at court was organised was of great importance. One function of the early modern court was, in the words of Geoffrey Elton, to act as a point of contact between monarch and elite. I have chosen to test this hypothesis with a prosopographical analysis of more than 1,900 noblemen and noblewomen known to have served at the Swedish court between 1598 and 1721. The opportunities that the court provided are shown to have had far-reaching consequences, and it was also possible for women and men of low birth to wield informal political influence. Although few had really spectacular careers, if times were good the salaries and a plethora of perks were attractive. Royal personality put its stamp on the court. The distant kingship exercised by Caroline rulers meant that they used their courts in a different way than the more outgoing Vasas. Court organisation, however, went mostly unaltered, and shared many common characteristics with other, especially German, courts. During the seventeenth century, the Swedish court was militarised in the sense that individual military and court careers often overlapped, and indeed could run simultaneously, while the court as a whole could still be expected to accompany the king into battle. At the beginning of the seventeenth century the nobility of the Baltic provinces of Estonia and Livonia were well represented at court. However, in the second half of the seventeenth century the court was gradually Swedified and demilitarised, and as the court became increasingly inbred, court offices were transformed from springboards for aristocratic youths to life-time jobs. There are obvious similarities between the Swedish court and other contemporary European courts, the foremost being that the Swedish court took its structure from neighbouring German courts. Sweden also shared the important shift from a peripatetic court to a sedentary one. A difference, however, was the more militaristic nature of the Swedish court, which to an extent was shared by the Prussian and Danish courts. After the mid-seventeenth century these three countries developed smallish, top-light courts that were, generally speaking, cheap and heavily militarised. I have characterised them as the martial courts of the Baltic. (Less)

The Stage and the State: The Execution of Schiller's Maria Stuart

There is considerable evidence in Schiller's theoretical writings that he viewed his theatrical domain as a counter-position to the absolutist state, inasmuch as the theatre was a realm where politics and morality were not estranged from one another. ' The theatre, for Schiller, observed higher and more complex standards of law and order and had more enlightened methods of dealing with human vice or human weakness. In his impassioned defense of theatre, Was kann eine gute stehende Schaubuhne eigentlich wirken? (1784), Schiller makes a case for the power of the stage as a moral and political force, but he does not stop there. While portraying the theatre as a site of public education and personal improvement, Schiller also identifies it as an alternative judicial system, one that is ultimately more effective than contemporary courts:

Battered women and bad science: The limited validity and utility of battered woman syndrome

In 1991 the Supreme Court of South Australia held that evidence of battered woman syndrome had been erroneously excluded from the trial of two female defendants. The Chief Justice commented that battered woman syndrome appeared to be a ‘recognised facet of clinical psychology’ and that ‘methodical studies by trained psychologists’ had revealed typical patterns of behaviour for abusive males and their female victims (R v Runjanjic and Kontinnen. 1991, p. 118 per King CJ). This article critically examines the scientific basis and status of battered woman syndrome with particular focus on the methodology and conclusions of Lenore Walker, the psychologist who is generally credited with developing and promoting this syndrome. Other relevant studies that utilise the concept of battered woman syndrome are also examined. Problems are identified in the definition, conceptualisation and utilisation of the syndrome, and substantial methodological deficiencies are noted in the key empirical studies upon which the syndrome is based. Additionally, it is questioned whether expert evidence by psychologists is necessary on this issue in contemporary Australia. Hence, contrary to the conclusions of King CJ, it is suggested that the scientific base for battered woman syndrome is deeply flawed and that contemporary Australian courts should be wary of accepting expert evidence concerning battered woman syndrome.