Fact-finding Process Research Articles

Corporate moral insolvency: lessons from Purdue Pharma

ABSTRACT This article argues that Purdue Pharma, maker of OxyContin, is a morally insolvent corporation – its wrongdoing pervasive or central to the corporation’s operations, its actions causing grave harm, and yet accountability still seems out of reach. It further argues that Purdue helps demonstrate how criminal legal systems are not capable of holding corporations accountable for wrongdoing. For humans, being convicted of a crime often means being sent to jail, and states pay little attention to the plight of children of prisoners. For corporations, criminal legal systems focus on deterrence as a goal, largely because corporations are not capable of suffering from retributive punishments in the way that humans are. But corporate insolvency processes demonstrate that corporations can be restructured, reorganised, and liquidated. This article posits that a system of corporate moral insolvency could better respond to corporate wrongdoing – combining an inquiry-style process of fact finding with a negotiated settlement process providing those with most at stake a means to assert their interests, all while deterring future wrongdoing.

Conceptualizing the Legitimacy of Non-Transitional Truth Commissions: Norway and Canada Compared

ABSTRACT Recent years have seen a new trend in the transitional justice field, as Western democracies establish truth commissions (TCs) to address harms against Indigenous and national-minority populations. The first, most prominent, and now archetypal of these “non-transitional” TCs emerged in Canada. The most recent have been in the Nordic countries, with Norway leading the way. We suggest that to be effective, these TCs face a distinctive challenge: securing legitimacy not only among victim groups but also among the still-dominant national majorities under investigation for the wrongs in question. How can this be done? To find out, we first construct a model for conceptualising TC legitimacy. Per this model, TCs need legitimacy at three stages: their foundational, operational, and conclusory stages. New, “non-transitional” TCs must also secure legitimacy with two groups: victims and the majority. We test this model against the Canadian and Norwegian cases, using existing research, media analysis, and primary data to study four ways these TCs sought legitimacy: through their genesis, the design and interpretation of their mandates, the choice and behaviour of their commissioners, and the publicity of their fact-finding processes. Our comparative analysis shows that Norway’s TC fell short and reveals where.

COMMUNICATION MANAGEMENT AGENT OF CHANGE IN THE STUDENT BULLYING PREVENTION PROGRAM AT SMP N 1 CITY OF GORONTALO

Communication management is very important. for the process of reciprocal exchange of information, persuasion, or giving orders. This is used by agents of change so that they can carry out their duties of bullying prevention programs in schools. This study aims to explain the communication management of agents of change at SMP Negeri 1 Gorontalo City in the bullying prevention program. This is a qualitative study with data collection techniques using observation, interviews, and documentation. The findings show that the agents of change at SMPN 1 Kota Gorontalo carry out bullying prevention programs with several programs, such as bullying prevention programs through socialization, educational programs for each class, and programs through social media. Also, the top program of the anti-bullying campaign is carried out using communication management assisted by their supervisor as head of Counseling and Guidance. The conclusion from the findings is that the communication management of agents of change in the bullying prevention program at SMPN 1 Kota Gorontalo has been in accordance with the Cutlip and Center model of communication planning. As in the fact-finding process, agents of change have been able to identify bullying prevention programs well. In the planning process, even though in planning the bullying prevention program they still asked for help from the supervisor, they were able to carry out at the well by SMPN bullying the 1 Kota agents prevention of Gorontalo change programs by because well. they communicate The successful communication in through raising the process programs awareness is of those carried bullies have out implemented. However, in the final evaluation process, the agents of change do not carry out this process well. This is because they are still new so they do not know how the evaluation process is carried out.

Buyers Perception in Routine Life about Green Marketing Concept

Green Marketing is the new concept for India from last decade as going on the implementation of environmental rights for the sake of people. Producers are showing as environmental friendly behavior at public platform. In buyer oriented society, demand is the weapon of consumer which can’t be easily neglect by the producer i.e. U.S.A., Japan, Canada etc. but it is very difficult in seller oriented society due to the conventional perception of producer. Sensitiveness of consumers can play a significant role to implement eco-friendly products concept in developing countries like us. Indian consumers have diversity in perception about product uses in routine life. So, that’s why, how much Indian consumers are aware about green products and degree of implementation of their perception in routine life is remain fact finding process in India. Green marketing includes all the activities which make safer environmental sustainability from seller and buyer both points of view. As a seller point of view, green marketing activities includes design and developing eco-friendly products, recyclable and biodegradable packaging, steps of technology improvement and waste management etc.. Buyers green marketing activities follow to demand of eco-friendly products, proper uses of products, contribution in product recycle process etc.. Green marketing comes under the preview of internal and external environment of the firm. In this research paper, the main emphasis has been made of consumers’ perception about green marketing and patter to follow their perception in ordinary life. Research paper aims to find out what actually Indian consumers view about ‘green’? Keywords: Green marketing, eco-friendly products, environmental marketing, ecological marketing, consumer behavior, sustainable development

Knowledge co-production around the cormorant-fishing conflict using a joint fact-finding approach

The great cormorant (Phalacrocorax carbo) has been a persistent source of human–wildlife conflicts in the Baltic Sea area. Fishers have perceived cormorants as competitors for fish resources, while conservationists have resisted mass hunting of the birds. In this paper, we analyse the cormorant conflict in Finland, with a special focus on its factual dimensions and the previous attempts to address the conflict at the national and regional levels. We also present the results from a knowledge co-production process, structured as a joint fact-finding process to address the contested knowledge claims concerning cormorant-fishing interactions. The results suggest that the factual controversy about the cormorant effect on fishing livelihood is essentially a frame conflict resulting from different scales of analysis. Our findings support the assumption that knowledge co-production processes have the potential to address science-intensive environmental conflicts and create practically useful and contextually appropriate knowledge, which integrate scientific knowledge with place- and practice-based knowledge. The process developed a shared understanding of the fishers’ practical wildlife-induced problems and several other questions, including cormorant impacts on migratory fish in Finland. A key to generating shared information was that the participants had control over information used in the process. Furthermore, third-party facilitation was important to ensure effective dialogue. While interpersonal conflicts have not been the original source of the impasse, they have become an important part of it and prevented efforts to constructively address the conflict.

Finality, Res Judicata, and Counter-Epistemic Values in Civil Proceedings

Abstract This article proposes a perspective on res judicata whereby it can be approached as an epistemic barrier to the fact-finding process in subsequent civil proceedings. Being a well-recognized principle, it is enshrined as a strong and respected legal doctrine, recognized in every contemporary modern justice system, allowing courts to apply it confidently and commonly. Res judicata impedes the reiteration of litigation among the same parties on the same topic, and, in so doing, it will not allow further discussion on the issues adjudicated, notwithstanding the fact that new and better evidence might come to be available, and consequently result in a more accurate judgment. Thus, the private and public rationale for res judicata and its preclusive effects can be defined as a non-epistemic value of the public policy that diverts from the truth-seeking purpose of the judicial process toward finality and conclusiveness.

Returning the Home State to the Global Anti-Corruption Campaign

Abstract International investment law is facing significant challenges in combating corruption in investment activities. The existing scholarly discussions are mostly centred upon the triangular relationship between the foreign investor, the host State and the investment arbitration tribunal. The role of another important body—the home State—has been under-examined, which seems to be better placed to implement measures to effectively govern investors’ (mis)conduct and ensure responsible investments. After identifying the low rate of substantiated corrupt acts in investment arbitration and the lack of a robust corruption prevention system in investment treaties, this article argues that participation of home States in arbitration proceedings can help mitigate those arduous evidentiary challenges and facilitate the fact-finding process. Home States should also impose obligations of delivering periodic corruption risk assessments on investors through domestic legislation and investment treaties.

The wholesale problem with Congress: the dangerous decline of expertise in the legislative process

Objective: to document the declining respect for expertise in the US Congress, the implications for policymaking given the wholesale nature of the legislative process, and some possible ways to account for the decline of expertise in the legislative process.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological.Results: It is no surprise to anyone that the US Congress has become a hyperpartisan battleground where little effort is expended to promote policies that work for Americans. While the US Congress has always viewed policy issues through the lens of party politics, the role of nonpartisan expertise in the legislative process is at an all-time low. The disrespect for experts is growing across society, but the decline in their use is particularly troubling in the US Congress because it exacerbates deficiencies that are inherent to the legislative process. The US Congress passes laws of general applicability and does not sit in judgment of specific applications of the law. Whether the US Congress does a good job setting those general policies depends on the process it uses for doing so. Sometimes, though increasingly rarely, the US Congress gathers the relevant facts and arguments about different aspects of a problem before acting. More often, legislators have specific outlier problems or prototypes in mind when they draft legislation, and if there is not an expert fact-finding process in place to study a proposal, cognitive biases may go unchecked.Scientific novelty: Part I details the role nonpartisan experts have played in the legislative process over time and documents the various ways that experts have fallen out of favor in the US Congress. Part II explains why this decline of expert involvement in legislation is particularly troubling given the way the US Congress operates as a body making wholesale policy with little individualized feedback on how its policies are applying to real-world scenarios. Part III then turns to the question of what, if anything, could or should be done about it. While the US Congress could, in theory, shift course, that seems unlikely. Throughout its history, the US Congress has cared about nonpartisan expertise when it worried about presidential overreach. But with parties dominating the political landscape, there is little likelihood that the US Congress will care enough about its institutional position relative to the executive. In the absence of legislative reform, Part III therefore considers two additional implications of the decline of expertise in the legislative process. First, the decline of internal expertise in the legislative body places greater weight on the use of administrative agencies to provide that guidance. Ironically, the US Supreme Court may be toying with a revitalization of the nondelegation doctrine at the precise moment that delegation is most urgently needed. Second, courts and other bodies that interpret statutes could consider the relationship between statutory meaning and the US Congress’s consultation with nonpartisan experts to help address statutory ambiguities.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the functioning of the US Congress.

Victim impact statement and lay judges’ decision making: exploring cross-cultural and individual differences in East Asia

ABSTRACT Research has shown that emotional testimony given by victims or their family can affect jurors’ or lay judges’ decision-making processes, but little attention has been paid to cross-cultural and individual variations. The present study examined whether cultural and individual differences were associated with how victim impact statement (VIS) affected mock lay judges’ decision making in East Asian contexts. Participants from Japan (n = 74) and Taiwan (n = 64) reviewed a transcript of a lay participation (or Saiban-In) trial with or without an emotional VIS by the bereaved family and then made verdict and sentencing decisions individually. The results showed no main and interaction effects of VIS and culture on verdict decision, perceived strength of evidence, and sentence decision. Regression analyses showed that Need for Affect predicted higher perceived strength of evidence against the defendant and more guilty verdicts, and the effects were stronger in the VIS condition. We concluded that emotional VIS in a written format may not be biasing by nature in East Asian contexts; however, including a VIS could risk the possibility of bias in the fact-finding process of lay judges with a higher tendency to approach emotional information.

Ai v. Arbitrator: How can the Exclusion of Evidence Increase the Appointments of the Arbitrators?

Background: The present article was prompted by the growing influence of artificial intelligence in international arbitration. Artificial intelligence poses a challenge to the arbitration market since its advantages make it inevitable that in the future, it will take over some of the arbitrator’s fact-finding functions. Accordingly, the question arises as to how arbitrators can improve fact-finding and, consequently, maintain their demand in the arbitration market. This article analyses in detail one of the alternatives for such an improvement – a stricter application of the rule on the admissibility of written witness testimony. Objects: The article sets out the following objectives: (1) to uncover why artificial intelligence could be considered a better fact-finder than the arbitrator; (2) to identify how arbitrators apply the rule on the admissibility of written witness testimony in international arbitration proceedings; (3) to justify a different application of the latter admissibility rule that both improves the quality of fact-finding and, accordingly, allows arbitrators to keep pace with artificial intelligence. Methods: The article is grounded in the doctrinal legal research method since it will examine three legal sources: 1) the widely applicable IBA Rules on the Taking of Evidence in International Arbitration; 2) the arbitral tribunal’s awards; (3) legal scholarship. The research additionally uses an economic analysis of law as well as an interdisciplinary approach, which reveals certain psychological phenomena related to decision-making in arbitration. Results and Conclusions: The application of the rule of admissibility of written testimony of a witness in international arbitration leads to various negative consequences in the fact-finding process. For arbitrators to keep pace with artificial intelligence in the fact-finding process and increase their demand in the arbitration market, it is necessary to adopt a stricter approach to the latter admissibility rule. This approach leads to the exclusion rather than the evaluation of written witness testimony in international arbitration proceedings.

Legal mobilization and branches of law: Contesting racialized policing in French courts

AbstractWhen activists use the law to promote social change, how does the branch of law (criminal law, civil law, etc.) matter for movement outcomes? To examine this question, the article builds on legal mobilization scholarship, and on a qualitative study comparing three litigation strategies to contest racialized policing in France: mobilizing criminal law to hold officers accountable for police killings, mobilizing civil law to sue the state for racial profiling, and combining criminal and civil law to contest racialized police harassment. The findings suggest that three characteristics of legal branches matter for legal mobilization: (i) the branch's dominant paradigm (e.g., punitive vs. compensatory) determines how the problem gets framed and which actors are blamed for it; (ii) the legal provisions of each branch shape which aspects of the problem get highlighted, and which are obscured; (iii) the procedural and evidentiary rules determine the extent to which activists and victims can intervene in the fact-finding process and thus how much they can influence the strength of their claims in court. When they mobilize the law, social change actors strategize around the opportunities and constraints of various branches of law, to try influencing judicial decisions and the media coverage of cases.

Relevance, Admissibility and Probative Value in a Rational System of Evidence: A South African Perspective

In the South African legal system of fact finding and proof the relevance of an evidentiary fact is not governed by the rules of the law of evidence but by a set of extra-legal principles based on the logic of inferential reasoning and probability theory. However, there is no definitive legal definition, or practical test, of what constitutes relevance in a post-constitutional South African curial context, except for an ambiguous pre-1961 reference to a "blend of common sense, judicial experience and logic, laying outside the law". This article critically evaluates the relationship between relevance and admissibility in the adversarial adjudicative process, with particular reference to the peculiarities of the South African legal system, in which the procedural framework of the fact-finding process has been subjected to a post-apartheid constitutional democracy. In addition, this article provides an interpretative synthesis of prevailing international scholarship in the field, develops a functional three-legged practical relevance test for ease of application by all legal practitioners in the courtroom and provides a uniquely different possible statutory definition of relevance and admissibility.

Relevance, Admissibility and Probative Value in a Rational System of Evidence: A South African Perspective

In the South African legal system of fact finding and proof the relevance of an evidentiary fact is not governed by the rules of the law of evidence but by a set of extra-legal principles based on the logic of inferential reasoning and probability theory. However, there is no definitive legal definition, or practical test, of what constitutes relevance in a post-constitutional South African curial context, except for an ambiguous pre-1961 reference to a "blend of common sense, judicial experience and logic, laying outside the law". This article critically evaluates the relationship between relevance and admissibility in the adversarial adjudicative process, with particular reference to the peculiarities of the South African legal system, in which the procedural framework of the fact-finding process has been subjected to a post-apartheid constitutional democracy. In addition, this article provides an interpretative synthesis of prevailing international scholarship in the field, develops a functional three-legged practical relevance test for ease of application by all legal practitioners in the courtroom and provides a uniquely different possible statutory definition of relevance and admissibility.

적법절차원칙 구현을 위한 청문제도 운영 방안

Under the Administrative Procedure Act(APA), as a due process for intrusive administrative measures, we require the interested parties to be given prior notice of the disposition and an opportunity to submit their opinions, and to hold hearings in exceptional cases where other statutes stipulate that hearings be held. An administrative hearing is understood as a trial-type fact-finding process. However, more often in Korea, it is operated as mere an oral-opinion-submission procedure rather than a trial-type fact-finding procedure. As a result, administrative agencies do not show much interest in guaranteeing the independence of the hearing examiners in the operation of the administrative hearing. Recently in the increasing number of cases a hearing examiner is selected from among experts such as lawyers or professors. However, Korea’s APA still permits the selection of hearing examiners among general administrative officials or former public officials. Even if the civil servants selected as the presiding officer of the hearing belong to a different department from the adjudicating department, it is difficult to expect independence from the adjudicating department due to frequent rotation within the office. In addition, even in the case of selecting a hearing examiner from among external lawyers, the adjudicating department often intervenes in the selection process, and there is a risk of conflict of interest, making it difficult to expect independence. The most important thing in the administrative hearing is to have an independent hearing examiner listen to statements from both the agency staff and the interested party, collect evidence, check the facts, judge the applicability of the relevant laws, and present an opinion on whether to issue orders. To secure the independence of the hearing examiner, it is necessary to hire a full-time hearing officer selected from among those with certain legal experience. The hearing officer needs to be exclusively responsible for presiding over the hearing and protected from interference from the head of the disposition department or administrative agency. The recent revision of the Administrative Procedure Act not only expanded the subject of the administrative hearing but also introduced the hearing committee system. As a result, the burden of time and cost to pay for the administrative disposition procedure became much greater. However, the reality of administrative hearing in Korea is insufficient to guarantee the Principle of due process of law.

Mediating Human-Wolves Conflicts Through Dialogue, Joint Fact-Finding and Empowerment

Within a local and national context of escalating conflicts surrounding the management of immigrating wild wolves (Canis lupus) spreading from Germany into Denmark, we invited a group of citizens living in and nearby a Danish wolf territory to participate in an experiment called “The Wolf Dialogue Project”. The overall objective of the Wolf Dialogue Project was to explore the possibility of developing a productive alternative to the systematically distorted communication and “High conflict” that characterizes current wolf management, using a critical-utopian dialogue approach guided by Habermasian discourse ethic and a joint fact-finding process, that seeks to empower citizens to take on a shared responsibility for the commons. By purposefully not representing any strategic interests for or against wolves or the existing wolf management regime, the project offered a group of citizens the opportunity to formulate and communicate the problems and concerns they experienced, living in or nearby wolf territory. The project further offered the participating citizens the opportunity to develop counter measures and solutions to their experienced problems, through a facilitated process of social learning and empowerment. The duration of the dialogue project was two and a half years and included a demographic and political cross section of local citizens. Despite difficulties along the way, the outcome of the project was more profound than initially anticipated by the project team. Participants were initially very polarised, and some were opposed to the existing wolf management regime as well as governmental agencies, but they began taking on a collective responsibility guided by the common interest of their community, across individual differences. In addition, the process left a significant mark on the new wolf management plan recommended to the government by the Danish Wildlife Council in 2021. Far from all problems and conflicts were solved by the project, and new problems also emerged as a result of the project, but by bringing the commons of the participating citizens into focus, and applying a process of communicative rationality, joint fact-finding and the exploration of alternative futures, the project revealed the potential for social and environmental responsibility to emerge from sociopolitical empowerment.

The Potential and the Challenges of Digital Evidence in International Criminal Proceedings

Abstract Technological achievements such as mobile phones, computers and the World Wide Web have become an integral part of our lives, and societies and are indispensable to many. These new technologies, and information derived from them, have a great potential to support the fact-finding process in the fields of international criminal law and human rights. Therefore, digital information such as satellite imagery, communication data, and user generated content, for example, videos and photography are becoming essential tools for international criminal investigation. This article examines the characteristics of digital and technology derived evidence and the implications these characteristics have on their use in international criminal procedure. It will illustrate the value and the challenges regarding the inclusion of digital evi dence in international criminal procedure.

What can go wrong in child arrangement proceedings where there are allegations of domestic abuse?

ABSTRACT Research suggests that there are significant problems with the way that the family courts deal with child arrangement proceedings involving domestic abuse. As allegations of domestic abuse are present in the majority of cases reaching the courts for a decision about who a child should spend time with, it is essential that the process and outcomes are safe for non-abusive parents and children. However, the recent conjoined appeal Re-H-N and others highlights flaws with the fact finding process and the presumption of parental involvement, resulting in minimisation of domestic abuse. These flaws were also identified by the 'Harm Panel' report (2020), which made recommendations for fundamental reforms. The Court of Appeal does not specify the nature of the reforms needed, but does confirm the need for a fresh approach. This case note will consider what went wrong in the four cases considered by the appellate court and how the cases bolster the urgent need for reform.

Notes: Children, autonomy and statements: The need for a bright-line rule

Currently, a child cannot provide a statement without parental or guardian consent. This limits the child’s right to participate fully in matters which affect the child. Indeed, it also impacts the fact-finding process of an investigation. In terms of international conventions and the Children’s Act 38 of 2005, child participation is a cornerstone of children’s rights. This note proposes that South African law recognise adolescent autonomy — specifically, an adolescent’s competence to provide a statement in matters affecting the child. An adolescent’s stage of growth (physical and mental) makes the child capable of understanding the consequences of such conduct, and the child’s developing agency and cognitive abilities mean that the child may wish to do so. The note proposes that the law recognise the autonomy of a child who is twelve years or older to provide an unassisted statement in legal fora.

The Last Days of Sylvia Plath

The Last Days of Sylvia Plath

Deciding, ‘What Happened?’ When We Don’t Really Know: Finding Theoretical Grounding for Legitimate Judicial Fact-Finding

The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised.