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Administrative schemes of regulation and benefit-distribution give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Generally, all such systems provide for a front line determination, an initial decision, administrative reconsideration, and judicial review. However, the details of the various systems are bewilderingly diverse. This chapter proposes a methodology for classifying such systems. It identifies four key variables: combined function agencies or separate tribunals, adversarial or inquisitorial procedure, closed or open judicial review, and judicial review by generalized or specialized courts. The chapter identifies five models in common use around the world that involve different combinations of these variables. Finally, the chapter discusses the utility of transplants from the adjudicatory system of one country to another.

Regimes regulatórios e de distribuição de benefícios ocasionam um grande número de disputas individuais entre agências governamentais e particulares. Cada país precisa de um sistema de adjudicação administrativa para solucionar essas disputas corretamente, com justiça e eficiência. Esses sistemas geralmente compreendem três fases – decisão inicial, reconsideração administrativa e revisão judicial. Entretanto, os detalhes dos vários sistemas empregados ao redor do mundo são impressionantemente diferentes, e muitos países tendem a investir a maior parte dos recursos adjudicatórios em apenas uma dessas três fases (e os particulares que têm uma disputa com o governo tendem a confiar mais em uma das fases do que nas outras duas). Este artigo propõe uma metodologia para a classificação desses sistemas. Ele identifica quatro variáveis importantes: agências com funções combinadas ou tribunals separados; procedimento inquisitório ou adversarial; revisão judicial que pode ser aberta à introdução de novas provas ou fechada a elas; e revisão judicial feita por cortes de competência comum ou especializada. O artigo identifica cinco modelos mais usados ao redor do mundo, que envolvem diferentes combinações dessas variáveis. Os Estados Unidos, por exemplo, utilizam agências com funções combinadas, procedimento adversarial e revisão judicial fechada procedida por cortes de competência comum. Por outro lado, o Reino Unido utiliza um tribunal independente para reconsiderar decisões iniciais das agências. A França utiliza o sistema de revisão judicial aberta efetuada por uma corte especializada. Cada um desses modelos pode oferecer decisões corretas e eficientes, preservando a justiça. Finalmente, o artigo discute transplantes de um sistema de adjudicação administrativa para outro. Existem vários exemplos de transplantes bem sucedidos. O artigo sugere que os Estados Unidos deveriam considerar a adoção de um tribunal para a seguridade social (à semelhança dos tribunals do Reino Unido e da Austrália) para substituir o atual sistema de adjudicação nos litígios envolvendo a seguridade social.

Administrative regulations are an important tool of modern government, but their legitimacy is often questioned since they are adopted by the executive branch rather than the legislature. Judicial review of the legality of regulations is necessary but not sufficient as an accountability mechanism because judicial review is subject to many practical and legal shortcomings, especially including its high cost. Consequently, the vast majority of regulations are never subject to judicial review, which creates an accountability deficit. This deficit can be remedied through ex ante administrative review of the legality of regulations by an executive branch agency that is independent of the adopting agency. This Article evaluates executive branch ex ante legality review schemes in California, Chile, Israel, and France. Although these regulatory review schemes vary greatly, each of them scrutinizes the substantive and procedural legality of regulations (as distinguished from their economic or environmental effect or their political acceptability). This review takes place before the regulations are judicially reviewed and before they become effective. Ex ante administrative review can compensate for the failings of judicial review, promote the rule of law, and enhance the legitimacy of the regulatory process.

What is the role of a government attorney who represents a government agency on judicial review? Most academic literature in the United States (US) advocates the ‘hired gun’ model in which the role of the government lawyer is no different from that of a lawyer who represents a private client (although some academics and government lawyers disagree). The prevailing view in Israel is that government lawyers are ‘ministers of justice’, who owe a primary obligation to the public interest rather than to the client agency. This difference is attributable both to fundamental differences in legal culture between the US and Israel as well as to unique features of the Israeli system of judicial review.

This chapter in a symposium in the Journal of Legal Education on visual media and legal education discusses the seminar on Law and Popular Culture. This seminar focuses on the interface between the world of pop culture products (mostly movies and television shows about law and lawyers) and the world of law and law practice. Movies and television shows reflect popular beliefs and attitudes about law and law practice (the mirror) and also construct those beliefs and attitudes (the lamp). Seminar sessions focus on particular broad legal issues such as criminal and civil justice, the adversary system, heroic lawyers and bad lawyers. Each session is based on a particular movie or TV episode. One session concerns the life of lawyers and is based on the classic 1933 film Counsellor at Law.

Legal education historically was based entirely on written text. Traditional casebooks were just that — edited copies of appellate cases with textual notes. Pictures in casebooks were so rare that they deserved protection under the Endangered Species Act. In class, law teachers wrote words on the board. In recent years, many have used technologies such as PowerPoint to facilitate teaching, but the material projected on the screen was often more text. In our social world, however, the authority of the visual rivals that of written text. Today, all of us swim in a sea of images on television, on billboards, on computer screens, everywhere. Our students think visually. Legal education must keep pace. This symposium explores the possible uses of visual imagery in legal education. The fifteen relatively brief articles that follow take many different tacks, but all of them are intended to suggest new ideas and new methodologies to law teachers. We have divided them roughly into three categories. First, the use of visual materials (including scenes from television and film) in teaching traditional law courses. Second, teaching law students to interpret and to create visual materials and cope with new communication platforms. Third, teaching courses in law and popular culture. Of course, these three categories overlap in many ways. A law and popular culture class could be devoted entirely to using television and film to teach jurisprudence or professional responsibility (thus mixing the first and third categories). Or a course in making documentaries could be focused on documentaries for use in death penalty cases (thus mixing the first and second categories). Or a trial practice class could concentrate mostly on making visual aids such as simulations for use in personal injury cases (again mixing the first and second categories). But while the categories may be fluid, we hope that organizing the symposium this way helps readers identify the visual tools most relevant to their teaching goals.

Este trabajo sobre la justicia penal en la cultura popular estadounidense plantea que, tanto en cine como en televisión, hay un género del drama judicial y que un subgénero de él concierne a la justicia penal. Se identifican los rasgos convencionales que en ambos definen el carácter de fiscales y abogados defensores como protagonistas que han poblado este género. Por último, se apunta a las historias de cine y televisión que están desestabilizando el género.

A fundamental issue of judicial review of administrative agency action is what materials a reviewing court is permitted to consider. Under a system of closed review, the reviewing court cannot consider evidence that was not introduced at the agency level, reasons that the agency did not assert when it made the decision, or arguments that were not advanced at the agency level. A system of open review permits the agency to consider new evidence, reasons, and arguments. The United States usually practices closed review of all forms of agency action (including formal and informal adjudication, rulemaking, and policy implementation). In contrast, Israel often allows open review of all forms of agency action (even though Israelâ–™s system of administrative law is derived from the British model of closed review). This Article seeks to describe and explain this marked difference. In part, the difference relates to the fact that the United States relies much more heavily than does Israel on the initial decision rather than on judicial review to reach the correct result. As a result, in the United States agencies are required to observe decision-making procedures at the initial decision level that ensure the assembly of a record and a set of reasons suitable for judicial review, whereas this is not the case in Israel. In addition, Israeli practices relating to standing, jurisdiction of the Supreme Court (which serves as the trial court for important administrative law cases), the scope of judicial review, and doctrines of selective enforcement all differ sharply from the corresponding practices in the United States. These Israeli practices could not function well under a system of closed review.

The term genre refers to a set of thematically or stylistically similar popular cultural texts. Courtroom narratives form both movie and television genres, and criminal trials form subgenres. Each entry in the criminal subgenres contains a criminal trial and pits a prosecutor against a defense lawyer. This article discusses the genre conventions for these characters. Where the defense lawyer is a protagonist, the client is a co-protagonist. The client is either innocent or is being unjustly prosecuted. The defense lawyer, often presented in heroic terms, struggles to get the client acquitted (or the punishment reduced). The defense lawyer must overcome obstacles that the antagonist prosecutor places in the lawyer’s path. Defense lawyers are loners who are lacking in personal life or emotions. Perry Mason is the iconic genre defense lawyer. Where the prosecutor is the protagonist, the crime victim (or survivors of a deceased victim) are the co-protagonists. Prosecutors are relentless, honorable, and often politically ambitious. They must struggle to overcome obstacles erected by defense lawyers. Like defense lawyers, prosecutors lack a personal life or emotions. Jack McCoy on Law & Order is the iconic genre prosecutor. These generic conventions have become stale. Consequently, creators of pop culture products in the criminal courtroom subgenre employ genre-busting narratives that have refreshed the genre. Defense lawyers often work for clients they suspect are guilty and try to get them off through the use of technical defenses. Guilty clients deceive gullible lawyers into putting on cases with perjured testimony. If the client confesses guilt, the lawyer betrays the client to protect the public. Defense lawyers have personal lives, feelings, and emotions, and some are anti-heroes. Genre-busting prosecutors often have unpleasant personalities, and they don’t hesitate to bend ethical rules. As in the case of defense lawyers, prosecutors have inner lives and personal relationships. These genre-busters have destabilized the generic conventions and may well have established new conventions.

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal [AAT], a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation [the Tribunals, Courts and Enforcement Act] merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. An upper tribunal hears appeals from the first tier and largely supplants judicial review. The article concludes by asking whether the U.S. could learn anything from the Australian and U.K. experience and suggests that a single tribunal to adjudicate federal benefits cases might be a significant improvement over the existing model.Cet article compare un certain nombre de systèmes de règlement judiciaire de différends dans le domaine administratif. Aux Etats-Unis, typiquement, le règlement de différends est effectué par la même agence qui établit les règles et qui les met en application. Toutefois, en Australie, presque tous ces règlements sont effectués par le Administrative Appeals Tribunal [AAT], une agence non-spécialisée de règlement de différends, ainsi qu‟un certain nombre d‟autres tribunaux spécialisés qui sont indépendants de l‟agence qui met les règles en application. Ces tribunaux (qui émanent de préoccupations au sujet de la séparation des pouvoirs) ont atteint un niveau élevé de légitimité. Au Royaume-Uni, une loi récente [la Tribunals, Courts and Enforcement Act] a fusionné plusieurs tribunaux spécialisés en un seul tribunal de première instance ayant des garanties d‟indépendance bien plus fortes qu‟auparavant. Un tribunal supérieur juge les appels des décisions du tribunal de première instance et supplante largement la révision judiciaire. L‟article se termine en posant la question à savoir si les Etats-Unis pourraient apprendre quelque chose de l‟expérience australienne et britannique et suggère qu‟un seul tribunal pour juger les cas de bénéfices fédéraux pourrait constituer une amélioration importante par rapport au modèle existant.

The study upon which this article is based arose from a series of seminars on Law and Film Studies during 2002 and 2003.1 More broadly it taps in to an ongoing question that has been at the heart of debates within the nascent law and film movement.2 Historically, the published writing on film in relation to law has assumed that popular culture must have some kind of impact on the general zeitgeist and on individuals in particular. As soon as lawyers started to feature in film there were concerns that the legal profession might be shown in a bad light, and what the implications of this would be.3 The assumption was that films had ‘effects’, and that ‘bad effects’ were to be avoided or at least balanced. The Hays Code is the best known example of the industry controlling its own output to avoid censorship. The Hays Code basically sought to preserve social values within the production of films; for example, one of the principles underlying the Code was that “Law . . . should not be ridiculed, nor shall sympathy be created for its violation”.4 With the demise of such production codes, and their replacement by much softer touch Codes of Self Regulation, there has been a major shift away from protecting the public from having to confront bad characters without ‘balance’.

Zusammenfassung Ein international vergleichendes Forschungsvorhaben ging der Frage nach, wie Studienanfänger der Rechtswissenschaft Anwälte sehen und welche Faktoren dazu beitragen. Dabei lag das Hauptaugenmerk auf möglichen Wirkungen des Medienkonsums. Die Bochumer Befragten bescheinigten Anwälten ein hohes allgemeines Sozialprestige, auch, dass sie ihr Einkommen verdienen, zweifeln aber häufig an der Ehrlichkeit und Moral der Anwaltschaft. Die weitere Analyse zeigt dass TV-Anwaltsserien und Anwaltsfilme, das Vorbild von Anwälten innerhalb der eigenen Familie oder im Freundeskreis und der nationale Hintergrund der Jurastudenten für die Bewertungen ausschlaggebend sein können. Mediale Anwaltsdarstellungen wirken tendenziell legitimierend für die Anwaltschaft.

Regulatory and benefit-distribution schemes give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Such systems generally provide for three phases—initial decision, administrative reconsideration, and judicial review. However, the details of the various systems employed around the world are bewilderingly diverse, and different countries tend to invest most of their adjudicatory resources in only one of the three phases (and private parties who have a dispute with government tend to have more confidence in one of the phases than in the other two). This Article proposes a methodology for classifying such systems. It identifies four key variables: combined-function agencies or separate tribunals, adversarial or inquisitorial procedure, judicial review that is either open to introduction of new evidence or closed to new evidence, and judicial review by generalized or specialized courts. The Article identifies five models in common use around the world that involve different combinations of these variables. The United States, for example, uses combined-function agencies, adversarial procedure, and closed judicial review in generalist courts. On the other hand, the United Kingdom employs an independent tribunal to reconsider initial agency decisions. And France employs open judicial review in a specialized court. Each of these models can deliver accurate and efficient decisions while preserving fairness. Finally, the Article discusses transplants from one administrative adjudicatory system to another. There are numerous examples of successful transplants. The Article suggests that the United States should consider adopting a social security tribunal (similar to the tribunals in the United Kingdom and Australia) to replace the present system of adjudication of social security disputes.

David Mellinkoff's 1973 book 'The Conscience of a Lawyer' concerned a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty, but the client insists on an all-out defense? Mellinkoff focused on the Courvoisier case, a notorious English trial in 1840 in which defense counsel's tactics created an enormous public scandal. Legal ethicists have struggled with these issues ever since that time and they remain unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking in the certainly-guilty client situation. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide surprisingly interesting perspectives on the strong vs. weak adversarialism dilemma. Literature casts doubt on whether a lawyer can ever know with the requisite certainty whether a client is guilty. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings. American popular culture, on the other hand, presents an emphatic answer to the question of what a lawyer with a certainly guilty client should do. According to pop culture, the lawyer's job is to betray the client to make sure the guilty criminal is convicted, dishonored, or killed. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth.

The adversary system is the nearly unquestioned ideology that animates civil and criminal justice in the U.S. Under the adversary system, lawyers control the trial. Judge have little to do except rule on legal issues and evidentiary objections and pound their gavels. The objective of the adversary system is to provide procedural justice and to find "trial truth." The goal is not to provide substantive justice or to discover the real truth about what happened. This paper asks why the U.S. is committed to the adversary ideology. To some extent the commitment arises out of ignorance of alternatives and reliance on tradition. It also derives from broadly shared commitment to individual autonomy and laissez faire capitalism. Distrust of judges and other bureaucrats is certainly a major factor. Often, distrust of American judges is entirely warranted. This paper suggests an additional reason for our commitment to the adversarial ideology: constant exposure to popular culture models. To some degree, we all sit at the feet of our master trial practice teacher, the immortal Perry Mason. Mason trained us to believe that only lawyer cross-examination could discover the truth. Countless TV series and films have reinforced this message. The model requires lawyers to be in control and judges to get out of the way. A lifetime of pop culture conditioning in the glories of the adversary system makes it impossible for most Americans to consider alternatives.

Every agency produces "guidance documents" such as interpretive rules and policy statements. These documents are very important to the public and to the agency and its staff. It should be possible to issue them with no prior notice and comment procedure. Section 553 of the federal APA provides an exception from rulemaking procedure for guidance documents but this provision has proved to be extremely difficult to apply and is problematic in many respects. Most states adopted the 1961 Model State APA which provided no guidance document exception. Surprisingly, the states have moved strongly in the direction of federal law. Either through legislative amendments to the state APA or through creative court decisions, a majority of the states and almost all of the most populous states now permit at least some guidance documents to be issued without prior procedures. California is the primary exception; by statute, California explicitly requires prior notice and comment for the issuance of virtually all guidance documents and the courts have enforced this provision rigorously. The result is disastrous - agencies employ all sorts of suboptimal avoidance devices and many agencies flout the law. The legislature recently passed a statute to partially correct the problem but unfortunately Governor Gray Davis vetoed it. The article concludes with a proposal for a safe harbor provision similar to that in the vetoed California legislation. The safe harbor would improve the law both in jurisdictions with guidance document exceptions (like the federal government) and in jurisdictions providing no such exceptions. The safe harbor provides that clearly identified guidance documents can be issued without prior procedure, but the agency must provide an opportunity for post-adoption comment. Private parties are not bound by the documents but would be entitled to rely on them and courts are prohibited from paying them any deference until the post-adoption process is complete and the document is adopted in final form.

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Most American lawyers now practice in law firms, ranging from small partnerships to immense multi-national megafirms. In the movies, lawyers in solo practice have often been presented favorably, but when lawyers band together into law firms, the firms are almost always portrayed unfavorably. Recent films involving larger law firms, such as "The Firm," "The Devil's Advocate," or "Philadelphia" been venomously negative. Professor Asimow traces the history of law firms in film, concentrating particularly on Orson Welles' noir masterpiece "The Lady from Shanghai," which he believes invented the idea that law firms are an embodiment of evil. Asimow believes that the explanation for the rash of harshly negative big-firm movies lies both in the public's evident distaste for lawyers in general and law firms in particular and in the traditional anti-business theme in film narrative. He sketches the history of the big law firm and contends that the world of big firm law practice has swung sharply in the direction of a business model rather than the traditional professionalism model. Finally, Asimow contends that in several respects the depiction in contemporary films of large firm life and law practice is fundamentally on target. In particular, the treatment in the movies of lawyer life style, billing improprieties, and hardball litigation tactics appears to be essentially correct.

Movies often provide a window through which we can observe human behavior and legal institutions as they existed when the film was made. However, this is not true of the subjects of marital disintegration and divorce. Hollywood's rigid system of self-censorship, embodied in the Hays Code and the Production Code Administration, nearly blotted divorce themes right off the screen. What little was said of the subject during the middle third of the twentieth century was wildly wrong. The Code was written by and administered by staunch Catholics, largely to stave off boycott threats by the Catholic Legion of Decency. As a result, it reflected Catholic moral teachings, particularly the prohibition of divorce. This article surveys films about divorce from the pre-Code era (1930-34), the Code era (1934-68), and the immediate post-Code era (1968-1980s). It discovers that divorce themes were candidly portrayed during the pre-Code era but were thoroughly suppressed during the Code era. In the post-Code era, the subject crept back to the screen in a series of memorable films about divorce in the late 1970's and early 1980's. The article then analyzes Kramer vs. Kramer (1979) in detail, finding it to be one of the few classic treatments in film of divorce and family law.

The California Law Revision Commission has been working for ten years on administrative law reform. This work resulted in one solid success--enactment in 1995 of a new Administrative Procedure Act for adjudication. The new APA modernized California's APA by providing an administrative law bill of rights for litigants before agencies not covered by prior law. It also introduced some important reforms such as informal hearings and alternate dispute resolution. The Law Revision Commission also suffered two ignominious failures: its judicial review reform bill was killed in a state senate committee and a modest set of rulemaking reforms passed the legislature but was vetoed by the governor. This article analyzes the politics of state administrative procedure law reform in California, identifying the relevant players and pointing out the pitfalls that any state administrative law reform is likely to encounter. Reformers must enlist a powerful political patron to back the project and must be prepared to compromise until virtually all serious opposition is neutralized. They must articulate a powerful intellectual case for reform, in order to counter the cliche "if it ain't broke don't fix it." In particular, there must be some benefit in the reform package for state agencies so that they have a reason to buy in. For example, a provision for informal hearings or a provision that allows an agency to adopt precedent decisions without going through rulemaking might be attractive to agencies. Agencies will staunchly resist reforms that increase their costs (for example, by required rulemaking) or reduce their autonomy or power (for example, by stripping them of their administrative law judges or diminishing their ability to overturn ALJ findings). Similarly, the private sector will resist reforms that diminish procedural or judicial review protections. Many people will mistrust and misunderstand any reform effort. In the nature of the political process, it is easy to kill legislation (especially when generous campaign contributors are trying to kill it) and hard to pass it. Therefore, reformers must be as inclusive as possible during the drafting of legislation so that all major players can have input into the process. It will often be necessary in this process to scale back ambitious reform proposals and make timely compromises. Failure to recognize these realities of political life doomed the Law Revision Commission's judicial review bill. The article surveys existing Pennsylvania administrative law which is relatively primitive. The waves of reform marked by the 1961 and 1981 Model State Administrative Procedure Acts have largely passed Pennsylvania by. The lack of statutory law has forced Pennsylvania courts to reform administrative procedure by applying the state constitution. These decisions seem ill-informed and they unduly constrain the legislature. On the other hand, Pennsylvania's system of uniform administrative procedural rules is a significant innovation. Pennsylvania administrative law needs updating, but the process of achieving reform will be tedious and difficult. The California experience should prove valuable to Pennsylvania as it undertakes this process.

A survey of about 300 films involving significant lawyer roles reveals that from 1930 to 1970, more than two-third of the lawyers were good human beings and competent, ethical professionals. Since 1970, however, just the reverse is true: about two-thirds of the lawyers in film have been bad human beings and/or bad professionals. This article links the phenomenon of negative lawyer portrayals in film with the sharply declining public perception of the ethics of lawyers. The films accurately reflect the stunning drop in the public's image of the profession. The article speculates on the causes for this abrupt decline and suggests that negative film portrayals may be cause as well as effect. It draws on insights from cognitive psychology (the cultivation effect) to establish that the public may be learning that lawyers are bad from watching them in the movies.

Recent scholarship by Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast,' and by Arthur Lupia and McCubbins,2 sheds new light on an important administrative law subject: the rationale for and the utility of the procedures that an administrative agency must follow in order to adopt rules. According to the Administrative Procedure Act ("APA"), an agency must give public notice of a proposed rule and allow any interested person to provide written comments on that rule.3 The agency must also supply a concise statement of the basis and purpose of a rule when it is adopted.4 A final rule must be published in the Federal Register,5 and its effective date must be delayed until thirty days after publication.6 What purposes does the notice-and-comment procedure serve? While the legislative history of the APA is unilluminating, courts and commentators have identified two significant purposes. The first is utilitarian, and the second is drawn from political theory. The utilitarian purpose is that the notice-and-comment procedure produces better rules than a regime lacking such procedure. When evaluated by the conventional utilitarian calculus,7 this congressional insight seems correct. The

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