JENNY E. CARROLL, University of Cincinnati College of Law
Email: jenny.carroll@uc.edu

This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

MAURITS BARENDRECHT, Tilburg University - Law School
Email: j.m.barendrecht@uvt.nl

This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through ‘justice transactions,’ including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however. Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, stimulating ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice.

More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services. These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms. Such policies are relevant for any justice system, but in particular for legal empowerment of the poor and for stimulating microjustice.

DAVID ROLPH, University of Sydney - Faculty of Law
Email: davidr@law.usyd.edu.au

The proper test to be applied to the grant of an interlocutory injunction to restrain the publication of defamatory matter is rarely litigated at the highest appellate level. The High Court of Australia's decision in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 provided an opportunity to clarify the applicable principles and potentially to end the division of judicial and academic opinion between what has been characterised as the 'rigid' and the 'flexible' approaches to such relief. This article analyses the reasoning in A.B.C. v O’Neill. It questions whether it can be properly claimed that general equitable principles apply to the grant of injunctions in defamation cases when, in substance, the approach of the majority in A.B.C. v O'Neill appears to treat defamation as a special case. Beyond an engagement with the principles governing injunctive relief in defamation cases, this article argues that A.B.C. v O'Neill raises further, difficult issues of principle, such as the value to be ascribed to freedom of speech; the meaning of ‘trial by media’; the role of reputation in defamation law; and the emerging tension between injunctions to restrain the publication of defamatory matter and invasions of privacy.

COREY DITSLEAR, University of North Texas
Email: ditslear@unt.edu
JAMES J. BRUDNEY, Ohio State University College of Law
Email: Brudney.1@osu.edu

Debates about statutory interpretation - and especially about the role of the canons of construction and legislative history - are generally framed in one-size-fits-all terms. Yet federal judges - including most Supreme Court Justices - have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008.

The authors conclude that the Justices tend to rely on legislative history for importantly different reasons in these two fields. The Court regularly invokes committee reports and floor statements in the workplace law area for the traditional role of identifying and elaborating on the legislative bargain that Congress reached. By contrast, the Justices often rely on the legislative history accompanying tax statutes to borrow expertise from key committee actors. The Court’s use of tax legislative history for expertise borrowing purposes relates to the distinctive nature of how tax legislative history is produced, featuring regular cross-party and interbranch cooperation that is virtually unimaginable in the workplace law setting. Although most Justices have appreciated the special character of tax legislative history, Justice Scalia remains steadfast in his unwillingness to do so.

With respect to the use of canons, Brudney and Ditslear find that the Court makes comparatively heavier use of the whole act rule and related structural canons in its tax majorities. The authors suggest that the Justices may recognize the Internal Revenue Code to be more of a coherent and self-contained regulatory scheme than the series of workplace law statutes scattered across multiple titles of the U.S. Code. As for substantive canons, the Justices are much more likely to invoke tax-based judicial policy norms than to rely on canons grounded in the specifics of workplace law. The authors contend that the Court’s use of these tax law canons should be viewed as a derivative form of expertise borrowing.

Finally, Brudney and Ditslear explore the special role played by Justice Blackmun in the tax area. They demonstrate how Blackmun’s expertise in tax law and his attentiveness to its rich legislative history anchored the Court’s performance for twenty-four years. Since Blackmun’s retirement, the other Justices have been less interested in reviewing tax cases and far less willing to use legislative history when they choose to decide such cases.

The evidence that familiar interpretive resources play distinctive roles in the area of tax law contributes to a subtler and richer texture for statutory interpretation than is often captured in scholarly debates. At the same time, the authors’ results also indicate that the Court since the late 1980s has exhibited greater uniformity in its reasoning in tax law and workplace law cases. Brudney and Ditslear wonder whether the philosophical arguments favoring a less flexible approach to statutory interpretation are beginning to trump a pragmatic orientation that is more sensitive to differences among particular subject matter areas of federal law.

JEFFREY A. PARNESS, Northern Illinois University - College of Law
Email: jparness@niu.edu

Generally, Illinois courts cannot decide moot questions, that is, questions whose answers will not alter case outcomes. Occasionally, however, exceptions are made that allow moot questions to be determined. Five mootness exceptions for civil appellate cases were explored in In re Alfred H.H., 233 Ill.2d 345 (2009), where the court decided that evaluations of the established exceptions usually “must be conducted on a case-by-case basis.� Per se exceptions are now disfavored. Exceptions are more likely employed where appeals involve decisions on legal issues creating uncertainties, requiring more authoritative bases, or continuing to cause harm.

CARRIE MENKEL-MEADOW, Georgetown University Law Center, University of California, Irvine Law School
Email: MEADOW@LAW.GEORGETOWN.EDU

This chapter in the forthcoming Oxford Handbook of Empirical Legal Studies reviews key issues in the empirical study of "alternative" dispute resolution processes, including both descriptive and comparative empirical studies and evaluations of negotiation, mediation, arbitration, consensus building, facilitative and other hybridized processes, such as regulatory negotiation and rule-making, and some instances of deliberative democracy. Problems of definition, dynamism of the processes studied, shifting boundaries of public and private processes, and the inability to compare "like" cases in different processes are explored. Because some processes are conducted in private it is difficult to rigorously study them, either descriptively or comparatively. The issue of what a "baseline" measure is for evaluating comparative processes is explored and problematized. As both civil and criminal justice systems explore a variety of reforms and the pressure to empirically evaluate different processes becomes important for scholars, practitioners and policy makers, it remains difficult to have confidence in studies which lack boundary clarity. There are advantages and disadvantages in both aggregate data studies and more in-depth limited case studies of different processes. In an era of increased "process pluralism" in both domestic and international law, the problem of measurement and evaluation of different processes remains important, if difficult, to master.