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Researchers have long argued that an important impetus for the creation of the administrative state was the desire to bring experts into government and especially into the regulation of business. Yet Progressive Era politicians did not focus on attracting experts when crafting one part of the administrative state, independent regulatory commissions. This article examines the contemporary understanding of regulatory commissions and shows that they were most often intended as a substitute for vacillating juries. Commissions’ most important advantage over juries was that they acquired experience in investigations of a single subject over time, not that their appointees were already academics or experts in a particular subject. This article also shows that appointments to these commissions did not demonstrate a desire for apolitical expertise. This is the first examination of all members appointed to the Interstate Commerce Commission, Federal Trade Commission, Federal Power Commission, Federal Communications Commission, and the Securities and Exchange Commission in the period from 1887 to 1935. This article finds that political and sectional balance, rather than previous expertise, were the most important criteria for these commissions’ members, at least until the late 1920s, after the end of the supposed Progressive Era.

Legal epistemology seems to be exploding. More and more philosophers seem to be taking an interest in the theory of evidence law, and to bring along with them to legal theory the freshest news from the abstract study of epistemology . This is understandable, of course: The law in general, and evidence law in particular, seems to be employing the same natural-language terms epistemologists are (or are at least supposed to be) interested in (“knew or should have known”, “reasonable doubt”, “evidence”, “presumption” (of innocence), and so on) . In this paper we argue that a large part of this project is based on a mistake, roughly analogous to the mistake involved in thinking of studies of intelligence as relevant to the understanding of military intelligence. With qualifications shortly to emerge, epistemology is not, we think, intrinsically and directly relevant to normative evidence law theory, at least, that is, as long as the relevant perspective is that of designing the evidence law regime. When it comes to the conscientious fact-finder, things may be – we’re not sure about this – importantly different.

In its initial stages, the international legal discourse around COVID-19 focused heavily on two narrow questions: first, the international legality of lockdowns, and secondly whether China could be held legally responsible for the pandemic. In September 2020, Donald Trump called upon the UN to find China responsible for COVID-19. Similarly, Australia called for a fact finding mission over the question of China’s state responsibility. For its part China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the WHO or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market. These accusations are not simply of concern to a small number of government-employed international lawyers. The popular international law blog EJIL:Talk! announced in late 2020 that its most read post for the year was a piece by Peter Tzeng on the possibility of holding China internationally responsible for the pandemic. Tzeng’s piece was part of – and itself generated – a flurry of academic commentary on China’s potential legal responsibility. Of course, one could retort here that the combination of veto rights at the UN Security Council, the absence of obvious grounds for ICJ jurisdiction and the operation of sovereign immunity make the possibility of China (or any other state for that matter) facing proceedings over COVID-19 wildly implausible. Questions of proof – both in the light of non-cooperation but also sheer uncertainty – and causation make the suggestion that anyone will be held internationally responsible sound like a cruel joke. One would be tempted to dismiss, then, these discussions as being irrelevant, as the expressions of an out-of-touch profession on the part of lawyers and simple rhetoric on the part of states. However, it is important to resist this ‘realist’ impulse. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic. Indeed, from this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. Why, in such a practice-orientated field as law, does such an seemingly impracticalset of accusations recur? Our argument is that law, including international law, has many functions: it represses, it distributes resources, opportunities and violence, and it produces representations of our relationship with the world, or, in other words, it operates as an ideology. Our intervention is concerned with this latter, ideological function of law. In particular, we seek to detect and critique the specific representations about the relationship between states, capital, and global disaster that are implicitly articulated through discussions of state responsibility for the pandemic.

The attempt to explain an event in history finds a spectrum of perspectives among the academicians as well as journalists. Fixing, regulating and controlling the narratives over events by the people in power put the historian in a difficult position to extract facts from propaganda. In the context of widely discussed violence occurred in the capital of India in February 2020, various reports have come up to inform us about the event. A variety of disagreements starting from the naming the violence to fixing the targeted communities was surfaced in the public sphere. This study attempts to analyze various fact finding reports related to the Delhi violence and to find out the underlying facts about the event.

This paper considers whether the COVID-19 pandemic requires the establishment of an international commission of inquiry. It considers the reasons to pursue inquiry rather than litigation and what an inquiry's mandate might contain, including how much the inquiry should focus on international law or state responsibility. It then considers who could create such a body, what its composition might look like, different working methods, and how to maximise co-operation. Overall, a forward-looking inquiry aimed at improving global preparedness may be more prudent and realistic than a mechanism focused on legal wrongdoing.

Efforts to reform investor-state dispute settlement with an investment court promise to elevate the role of institutions in dispute resolution. The goal of this renewed campaign for institutionalism is to enhance both the legitimacy of arbitrators as individual decision-makers and the legitimacy of legal interpretation. But these reform efforts ignore another core aspect of legitimacy—the legitimacy of the fact-finding process. Ignoring this aspect of legitimacy is a significant oversight, as treaty authors, disputing parties, and practitioners all remain dissatisfied with fact-finding quality and with international law’s continued failure to address the factual complexity of today’s disputes. Both theory and experience with institutionalism in existing systems predict that an investment court—with a standing administrative apparatus, a standing first-instance tribunal, and a standing appellate mechanism—cannot address this dissatisfaction. At best, an investment court will have only marginal effects on fact-finding. At worst, it will become a potential source of unreliable fact-finding practices and serve only to increase the cost and length of the process. This Article cautions investment-court proponents to consider the aspect of legitimacy that they have missed and points them to an alternative, rules-based approach that would make changes to the evidentiary rules that govern the production, testing, and evaluation of evidence. A rules-based approach offers the opportunity to promote fact-finding practices that increase quality, to discourage practices that do not, and to support consistency and predictability—all without requiring wholesale reform or degrading efficiency. The Article concludes with two rules-based strategies: the establishment of analytical frameworks to increase adjudicator accountability and engagement with the factual record and the appointment of subject-matter experts as adjudicators to inject expertise directly into the decision-making process in factually complex disputes.

Issues relating to the establishment of the facts, seemingly as stubborn as ever, are a prominent feature of proceedings at the international level today. This chapter examines certain issues of evidence, fact-finding and experts which are common to various dispute settlement mechanisms, with the goal of identifying similarities and differences between these regimes. In doing so, it will focus on three illustrative evidentiary issues in particular, namely; proof, discovery and expert evidence. Section B shows that, in terms of the liberty, burden and standard of proof alike, a significant degree of similarity can be discerned across the international courts and tribunals examined. A relatively informal approach to issues of proof is evident, in the absence of detailed provisions on such issues in relevant constitutive instruments. Section C, dealing with the issue of discovery, reveals a similar lack of detailed evidentiary provisions in this context, and examines how some tribunals have dealt with such issues in recent proceedings. The same trends can be seen in Section D, which addresses perhaps the most prominent evidentiary issue in contemporary practice, expert evidence. Finally, Section E reflects more generally on the issues raised in the preceding sections, noting that a common feature of the international courts and tribunals examined is the flexible nature of the fact-finding regimes which operate. Such flexible regimes, facilitated by relatively rudimentary provisions governing such issues in their constitutive instruments, were designed to accommodate the wishes of the parties, in accordance with the principle of party autonomy. As a result, courts and tribunals are left to innovate solutions to evidentiary issues as they arise on a case by case basis. This, in turn, provides both parties and judges and arbitrators a degree of flexibility and discretion in terms of how to handle such issues, but is also problematic in certain situations, as is illustrated in this Part. For this reason, it is argued that greater clarification and elaboration of evidentiary rules is likely to be necessary in the future.

The case by The Gambia against Myanmar at the International Court of Justice alleging acts of genocide against the Rohingya people raises complicated questions about the extent to which the ICJ will give weight to information in UN fact-finding reports. One approach may be for those involved in the preparation of such reports to testify in the proceedings.

The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing form of proof burdens, unfortunately, has a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case. This article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective at deterring wrongdoing. Existing scholarship has analyzed one type of continuous burden of proof, the linear burden, which scales the amount of damages in direct proportion to a jury’s confidence level that the defendant has engaged in the charged offense. Unfortunately, the choice between linear continuous burdens and traditional burdens involves a hard-to-reconcile tradeoff between the values of deterring wrongdoing and reducing the expected rate of errors at trial. I offer two ways in which we might move beyond this apparent stalemate. First, I enumerate previously unexplored advantages of continuous burdens, including their ability to minimize the impacts of biases and other forms of structural unfairness at trial. Second, I offer the first exploration of the logistic continuous burden of proof. This novel means of deciding cases strikes a better balance between deterrence and expected errors than either a traditional burden or a linear continuous burden does. After making the case for the adoption of a logistic continuous burden of proof, this article will consider some challenges that would stand in its way and some reasonable steps we could take towards the continuous approach.

This paper studies the Rubinstein bargaining game with frequent offers, in which both agents have reservation values. Agents are uncertain whether their opponents have high or low reservation values. As agents try to best each other, a unique distribution of delay emerges similar to the reputation literature. This paper answers the following question - Does ex-ante fact-finding improve efficiency? I show that if fact-finding is almost fully accurate, the outcome is fully efficient. However, if fact-finding is only a little accurate, generically, it adversely affects efficiency. I consider a mediator who could marginally improve the accuracy of fact-finding. I characterize a bargaining environment with simple binary signals, in which the mediator could help improve efficiency by finding facts.

Issues related to waste management in the context of Indian Cities still requires a path finder as most of the SWM planners and Executers are still in the dark which part of the SWM rule 2002 needs to be addressed in the primary stage. In fact finding it hard to plan and execute it was thought it may be better to change certain part of the rules which is not even 15 years old. A draft rules awaits approval and most of the people are not actually knows what is being changed and why. In fact this part of the facilities has never been considered as part urban infrastructures neither the citizen's opinion was asked in any stage while framing the rules or while even changing it for betterment. The present paper generates Certain issues related to Waste management which have been experienced while being involved in various cities in national and International arena and picks up certain unaddressed issues related to Waste management in Indian Cities. The main aim of this paper is to combine the opinion with a learned group of participants and try to evolve an effective pathway for its management. One of the most prominent factors which is missing in the entire process is the role of Community as a stake holder and their inclusion in the entire process.

This invited response considers a recent paper by Professors Ronald Allen and Michael Pardo, which defends their own “explanatory” theory of the proof process and critiques three other papers that employ quantified conceptions of uncertainty. The authors maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to the structure of American trials, and to typical jury instructions. They also demand that such a theory should be normatively defensible. Unfortunately, any model that can bridge the gap between these divergent grounds must be a vague approximation to any one of them. Even worse, blurring these lines will impede our ability to identify and evaluate potential reforms to our trial process.

As documented by a recent UN Human Rights Council fact-finding mission, a violent campaign by the Government of Myanmar against the Muslim-minority Rohingya people has resulted in thousands of deaths and the flight of more than 700,000 people into neighbouring Bangladesh. The increased international attention in 2018 to the plight of the Rohingya is to be welcomed, but the almost singular focus among activists and international lawyers on an international criminal justice-focused response is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, In that vein, this short piece considers the prospects for a case against Myanmar at the International Court of Justice (ICJ), including the jurisdictional basis for bringing such a case under the 1948 Genocide Convention, the challenge of identifying a state to act as the applicant, and the attendant benefits and risks of pursuing such an action.

International courts and tribunals are confronted with the complicated task of fact-finding in instances of a respondent party’s non-appearance due to the lack of clarification and assistance from the non-appearing party. As a result, international bodies frequently face criticism for possible inaccuracy of fact-finding undertaken under conditions of incomplete stakeholder participation and information deficiencies. This paper examines the practice of various courts and tribunals in non-appearance cases and attempts to develop procedural rules applicable to these cases. It finds that consistency and corroboration of evidences submitted by the appearing party should be the focus of these procedures, and the usual preponderance of evidence test should be discarded in cases of non-appearance in order for international bodies to satisfy themselves that claims are well founded in fact. A pro-active approach to fact-finding may be helpful to the courts and tribunals in certain aspects, however such an approach may still fail to ensure accuracy of factual conclusions if the characterization of the underlying dispute is itself inaccurate, as the starting point for the soundness of the fact-finding.

This article examines a false start in the application of psychology to the law. While there had been expert testimony from physicians in criminal and civil cases in America since the nineteenth century, forensic psychology first emerged in the early twentieth century. Following European traditions of experimental psychology, Hugo Münsterberg applied the nascent science of memory research to the assessment of witness credibility. A brilliant and popular Harvard professor, Münsterberg touted his technique of word-association to determine truth. Forensic psychology's development was stalled by resistance from within legal authorities, including John Henry Wigmore, the leading expert on evidence. However, Münsterberg was a sensation in popular media. In this article, the authors examine early attempts to import experimental psychology into the courtroom and the arguments against them. Not only were Münsterberg's findings premature, they touched on a forbidden domain for witnesses: fact finding. While sincere, he learned that the determination of truth lay within the province of juries and judges, not psychologists. Thus, the application of psychology to the law was delayed. The authors review the lessons from Münsterberg's false start and comment on developments in the admissibility of scientific testimony.

In 2005, the UN Security Council condemned the assassination of the former Prime Minister of Lebanon, Rafik Hariri, and established the United Nations International Independent Investigation Commission (UNIIIC) to assist the Lebanese authorities in conducting their investigations. The UNIIIC's investigation transitioned to prosecutions at the Special Tribunal for Lebanon. This Chapter sheds light on the UNIIIC’s institutional features and evaluates its performance in light of wider political dynamics. It utilises documentary sources, commentary and semi-structured interviews with former UNIIIC staff members to understand different perceptions of the UNIIIC's operations and investigative challenges felt on the ground. The Chapter argues that the UNIIIC adopted different personas in the course of executing its mandate, which reflected changes in wider institutional and political contexts as well as the outlooks of successive Commissioners. The UNIIIC can be seen as evolving from a truth-seeking inquiry to a criminal investigation and finally to a conduit for prosecutions. These different personas are appraised in light of the UNIIIC's technical mandate and the broader goal of maintaining international peace and security by ensuring accountability.

One of the most debated and controversial topics amongst legal scholars has been the role of probability in the evaluation of legal proofs conducted in the fact finding process which is typical of courts. This matter is especially important in criminal proceedings, where the standard of proof is set to “beyond any reasonable doubt.” In international criminal tribunals, the governing principle is the “free evaluation of evidence” which means that judges are not obliged to respect any kind of rule on how to evaluate evidence and can therefore pick the approach that they consider being the best fit to evaluation. The ad-hoc tribunals and the International Criminal Court so far have not stated a preference for any kind of mathematical or non-mathematical approach to evidence and for this reason an analysis of their case law is inevitably crucial in order to understand which method was applied by the judges in each specific case. This essay will first outline the main differences between mathematical and non-mathematical approaches to evidence. The focal flaws about methods applying mathematical probability theories will be mentioned and it will be argued why this method cannot be applied by the International Criminal Court. Then the non-mathematical approach to evidence will be delineated and specific attention will be given to Cohen’s system of inductive probability. Consequently, the reasoning of the International Criminal Court in a selection of cases will be studied in order to determine which approach was picked by the Court. The author will seek to prove the hypothesis that the International Criminal Court applied a reasoning of induction by elimination as delineated in Cohen’s theory. This Essay will aim at answering the following questions: has the International Criminal Court adopted Cohen’s Alternative Hypothesis Approach in the Al-Bashir and Ngudjolo cases? Is this a suitable approach to evidence in the ICC? What are the problems connected to this kind of approach? Due to the vast academic work on the matter, the author has decided not to describe comprehensively all the existing theories on how to evaluate evidence but to focus on what she thought were the most relevant theories applicable to three ICC cases.

Along with the advancement of information and communication technology, researchers have pointed out the necessity and challenges of developing effective instructional strategies to enhance students' web-based problem-solving performance, which refers to the ability of investigating a series of related problems via searching for, abstracting and summarizing information on the web. In this study, a creative thinking strategy is proposed to cope with this problem. Moreover, an experiment was conducted on 80 freshmen from two classes of a university to evaluate the effectiveness of the proposed approach. The experimental results show that the proposed approach improved the students' web-based problem solving performance in comparison with the conventional approach in terms of ''problem finding'' and ''idea finding.'' Moreover, it was found that the proposed approach could improve the ''fact finding'' performance of the students with intuitive-type cognitive style. Accordingly, some implications and suggestions are given for educators who attempt to conduct web-based problem-solving activity.

For over 50 years, courts and scholars have tried to conceptualize fact-finding, and burdens of persuasion, in terms of the probability of facts given the evidence. The exercise has not produced a satisfying theory of fact-finding. The problem is reliance on probability. Fact-finding is not about probability. It’s about likelihood. The difference between these concepts is substantial. Where probability theories of fact-finding ask about the probability of the facts given the evidence, the proposed likelihood approach asks about the probability of the evidence given different assumptions about the facts. Where probability theories measure subjective beliefs, the likelihood approach measures the relative weight of evidence alone. Using the statistical properties of likelihoods, I show that every burden of persuasion in use today can be reduced to the same simple rule of likelihood reasoning. This likelihood theory of fact-finding closely mirrors the procedure of adversarial litigation, and solves all of the paradoxes, difficulties, and unacceptable implications that have long frustrated probability theories of fact-finding.

Scientific, statistical, and economic models are often crucial in legal fact-finding. Competing models yielding different inferences may represent the same phenomenon. This article studies the judgment of models in legal fact-finding, in particular where competing models and inferences must be judged. Three categories of the use of models are identified: formal models provided by experts, formal models not scrutinized as expert knowledge, and the use of models more informally to aid storytelling. In the first case, the nature of expert knowledge makes it difficult for non-expert fact-finders to judge the conclusions, which emphasizes the importance of judging the reliability of the methods used to reach the conclusions, both on their own terms and in conjunction with the specific circumstances of the case. In the second case, the challenge is to benefit from the logic of models, but avoid tautologies disguised as expert knowledge. In the latter situation, the methods applied may not be transparent, which emphasizes the need to judge the conclusions on the basis of explanatory power. It is argued that it is important to judge models according to the appropriate standard dependent on their use. The study mainly draws on examples from antitrust, regulation, and torts.

The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering de novo the evidence presented at the extradition hearing, and petitioners are disallowed from introducing evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. I argue that the nature of habeas corpus as an original and independent civil procedure requires that petitioners be allowed to introduce evidence, and demands that habeas courts review de novo the determinations of probable cause by extradition magistrates, rather than through low level standards of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.

Judges and juries frequently must decide, knowing that they do not know everything that would be relevant for deciding the case. The law uses two related institutions for enabling courts to nonetheless decide the case: the standard of proof, and the burden of proof. In this paper, we contrast a standard rational choice approach with a satisficing approach. Standard theory would want judges to rationally deal with the limitations of the evidence. We posit that this is not only descriptively implausible, but also normatively undesirable. We propose a theoretical framework for a judge who only considers scenarios that "she does not dare to neglect", and aims at decisions that are "good enough", given the undissolvable limitations of the evidence. We extend this approach to parties who strategically exploit the limited factual basis, and to judges who have to allocate limited resources for fact finding to more than one case.

With the UN's attention to individual accountability for human rights abuses now well into its third decade, this paper appraises the added value of a UN role and the best methods for accomplishing it. The paper argues that human rights fact-finding is an especially important task for the UN and considers, based on past practice, the factors that contribute to successful fact-finding as well as the pitfalls for the UN to avoid in the future. Some of the insights are based on the author's membership in the Secretary-General Group of Experts for Cambodia and the Secretary-General's Panel of Experts on Accountability in Sri Lanka. This paper was originally delivered as the John P. Humphrey Lecture in Human Rights at McGill University in September 2014.

This article is part of a festschrift in honor of Michele Taruffo’s remarkable career, and the astonishing erudition reflected in his wide ranging and significant corpus. One criticism is advanced, to-wit that he has too readily accepted as true the persistent rhetoric to the effect that the American adversarial system does not pursue accuracy in adjudication and is dominated by a sporting model in which the stronger and smarter wins regardless of truth and that Continental legal systems are much more geared toward truth determination. This rhetoric is examined and found to rest on striking mischaracterizations of both approaches to litigation. A more accurate, although quite general, description of both approaches is provided that suggests the rhetoric has it exactly backwards. Suggestive data concerning American and Continental legal systems are presented that directly conflict with the rhetoric. In addition, the obvious prediction is that accurate and efficient legal systems should lead to economic growth and innovation. Some suggestive data is presented, which shows that since 1980 the United States has dominated France, Germany, Spain, and Italy in both regards, tending to disconfirm the comparative effectiveness of the European legal systems. Compounding variables are mentioned, and hence the title, “The Perils of Comparative Law Research.”

Do international law and fact-finding institutions shape public opinion on contested events such as war crimes? Many international organizations believe that they do: in recent years, international fact-finding have become a dominant response to crisis situations around the world, based on the assumptions that fact-finding reports inform the relevant public and motivate domestic sanctioning of in-group offenders. This article challenges both assumptions. Based on two survey-experiments fielded in 2013 and 2014 on representative samples of 1,000 and 2,000 U.S. nationals, the study demonstrates that international fact-finding reports on war crimes committed by U.S. Marines in Afghanistan are ineffective in both (i) mitigating ideological disagreements in the U.S. over contested events; and in (ii) motivating domestic sanctioning of U.S. war criminals. These findings suggest that sometimes more information means less shared knowledge. Ironically, the legal desire for factual accuracy and accountability triggers social dynamics that frustrate both.

In this paper, we use experimental data to test theoretical predictions concerning the differences in decisional treatment between adversarial and inquisitorial systems where the proceedings fail to achieve explicit revelation of decisive facts, and suggest new directions for future research. In particular, we use our data: (1) to test the hypothesis of Shin [RAND J. Econ. 26 (2) (1998) 378] that adversarial versus inquisitorial decision systems will differ in their reaction to the case of non-revelation in a predictably systematic manner and (2) to test the predictions of Dewatripont and Tirole [J. Politic. Econ. 107 (1) (1999) 1] concerning the types of errors that are likely to result from both procedures. We find that our experimental subjects’ decision-making pattern does not follow the inferential process postulated by Shin. However, it does appear, as predicted by Dewatripont and Tirole, that our adversarial decision makers had a stronger tendency than inquisitorial decision makers toward an equal division of a contested stake, where revelation fails and formal burdens of proof are suppressed. Our results support the argument that formal burdens of proof, which provide default rules of decision where procedures fail to achieve revelation of decisive facts, are important to the efficient functioning of adversarial systems of adjudication.

This working paper examines how monitoring, reporting, and fact-finding (MRF) missions have responded to challenges regarding public communication and report drafting. Overall, the paper aims to present a portrait of the views and practices of the MRF community — as well as the implications of different approaches — regarding transparency. What should MRF practitioners communicate publicly? What information should be kept private? When a mission does communicate publicly, how should practitioners do so? What factors should shape practitioners’ communications strategies? How should these factors influence the ways that practitioners approach drafting MRF reports? This paper examines these questions, which — given that the effectiveness of an MRF mission hinges on the ability of commissioners to foster positive public perceptions of the mission’s credibility — are crucial to the overall success of the domain of MRF.

This paper examines follow-up measures that have been undertaken in the wake of reports published by monitoring, reporting, and fact-finding missions tasked to investigate alleged violations of international humanitarian law and human rights. Section 1 explores the perspectives of both MRF practitioners and scholars on the importance of recommendations offered in MRF reports. Section 2 examines the impacts that MRF practitioners seek to achieve. Section 3 provides an overview of the methodological dilemmas of assessing the outcomes of MRF work. Section 4 presents an assessment of the implementation of recommendations articulated in reports of fifteen MRF missions implemented over the course of the past decade. Section 5 examines the factors that shape practitioners’ decisions about crafting recommendations in MRF reports. Section 6 posits questions for practitioners and policy actors to consider as part of the ongoing discourse regarding devising MRF methodologies, learning lessons from past MRF experiences, and building a community of practice among MRF practitioners.

Today, many international criminal lawyers claim that the future of international law is domestic. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the future, but also the past. This article analyzes the practice of the Commission (1943–1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many World War II accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of United Nations (UN) peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has got lost in the course of the second half of the twentieth century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labelling and origin of core crimes (e.g. aggression, crimes against humanity), the treatment of group criminality (e.g. attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g. ‘mutual trust’ under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court (ICC). But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.

This paper sets out various dilemmas faced by practitioners undertaking fact-finding missions, based on a desk analysis and extensive interviews with expert practitioners. The paper addresses the challenges, both practical and theoretical, related to standards of proof and information collection and suggests policy options that might be pursued moving forward.

The interaction between fact-finding bodies and international criminal courts and tribunals has been subject to growing attention in past decades. There is a visible trend in UN practice to charge fact-finding missions with mandates involving (quasi-) criminal investigation or the determination of accountability of specific actors (e.g., individuals or groups) for human rights violations. In existing discourse, it is frequently assumed that this increased focus on criminalization supports the prevention or prosecution of atrocity crimes. This chapter re-visits this claim. It argues that the impact and use of the findings of fact-finding bodies for criminal investigations and prosecutions depends on a number of key parameters, namely (i) the nature of fact-finding entities, (ii) the relevant addressee in the criminal process (e.g., Prosecution, Defence, Judges), (iii) the stage of proceedings, (iv) the type of decision, and (v) the nature of evidence. These parameters provide a basis for a more nuanced assessment of institutional interaction that takes into account the different ‘centres of gravity’ of fact-finding and criminal proceedings. Based on analysis of these five parameters, and relevant practice and jurisprudence, it appears misleading to frame the link between external fact-finding and international criminal justice in terms of a natural continuum. It is more appropriate to conceptualize interaction based on a sliding scale. Materials, documents and testimony provided by fact-finding bodies have undisputed relevance to ‘context’-related evidence. They may also support other functions in the criminal process. But they are by no means determinative for the outcome of investigations and prosecutions.

One dilemma that faces practitioners serving on monitoring, reporting, and fact-finding (MRF) missions concerns the protection of witnesses, victims, and staff. The paradox underlying the issue of protection is that, while statements from witnesses and victims account for the predominant evidence when investigating human rights violations, the very fact that victims and witnesses decide to come forward and contribute to the establishment of the truth can put these individuals at risk. Another dilemma emanates from the ad hoc nature of such missions, in contrast with the need to ensure protection on a long-term scale. In the often-volatile contexts in which MRF missions typically operate, security risks also arise for MRF staff members participating in on-the-ground operations. This paper analyzes how past MRF missions, whether commissioned by ad hoc bodies or by the UN, have grappled with these risks. The paper examines the sources of the obligations to protect witnesses, victims, and staff; the nature of the threats that could arise; the protective steps that have been taken; and the measures that could be taken by MRF professionals in the future. As this paper demonstrates, often a divide exists between aspirational notions of best practice and the reality of what can be delivered, leaving MRF practitioners frequently uncertain about the lengths and limits of their protective responsibilities.

Although international criminal law is the traditional language of international criminal tribunals, international commissions of inquiry and other international fact-finders are increasingly called upon to determine whether international crimes have been committed in a situation of armed conflict or distress. Questions have been raised regarding possibilities of evidence-sharing and other forms of cooperation between commissions of inquiry and criminal prosecutors. Rather than pursuing questions related to the sharing of facts, this Chapter analyses the phenomenon of sharing the law. It asks what the consequences are of the utilisation of the same body of law by different entities for different purposes. Do the different underlying purposes that inform the mandates of commissions of inquiry permit more flexible interpretations of international criminal law? And if commissions of inquiry indeed interpret international criminal law in a more lenient fashion, might this undermine the authority and credibility of this body of law? This Chapter grapples with these pressing questions by reference to the argument previously made in the R2P context that there may be grounds for legitimate difference in the application of the same concept when utilized for preventive or punitive purposes. The Chapter emphasizes the need for appreciation of the distinct settings in which international criminal law is invoked, and cautions that findings and interpretations from commissions of inquiry might only be transposed to the context of a criminal trial with a certain care and diligence.

A collaborative problem-solving approach was applied to environmental impact assessment of regional waste management strategy in Pirkanmaa, Finland. Various actors—interest groups, authorities, and experts—were invited to engage in joint fact finding and to exchange their views on the goals of alternative waste management strategies. The experiences of these encounters suggest that collaborative EIA can serve as a learning and civic discovery process where people can act together and find new solutions. During the process, the participants were able to reflect on their preferences and factual beliefs and to create a previously unconsidered waste management strategy that most parties found acceptable. The potential for learning and finding mutually acceptable solutions depended, however, on the legitimacy and institutional settings of the process: to what extent different perspectives were considered in the process, not only included, and how EIA was connected to a political decision-making process.

The following is a summary and a table of contents (Appendix 1) of a report commissioned by Industry Canada in Spring 1997 to examine the specific legal issues of liability for content circulating on the Internet. The purpose of this fact finding study was to assist Industry Canada in subsequently determining whether legislative measures in this field were needed.

The design and planning process is crucial to the implementation of monitoring, reporting, and fact-finding (MRF) mechanisms geared toward investigating violations of international law, including human rights, international criminal law, and international humanitarian law. However, many disagreements exist about how MRF actors should weigh different factors in their design and planning decision-making processes. This paper — to provide a point of reference indicating the implications of different methodological choices — examines areas of methodological agreement and disagreement, trends of professional decision-making, and normative perceptions that practitioners hold about best practices regarding the design and planning of MRF mechanisms. Based on an assessment of fifteen MRF missions implemented over the past decade, this paper analyzes how commissioners on these missions interpreted the mission’s investigative scope, examines the factors that guided decisions about the activities that the mission would undertake, and offers an overview of common staffing dilemmas. Overall, the paper aims to present a portrait of the state of MRF practice, in terms of how practitioners approach fulfilling their mandates.

While the existence of monitoring, reporting and fact-finding (MRF) bodies in the international realm is not a new phenomenon, the recent proliferation of such institutions raises a number of policy and legal issues. One issue is that, as MRF bodies are increasingly called to make legal determinations and interpret existing unsettled rules or concepts of international law, these mechanisms’ role and practice in this regard attract more legal scrutiny. As a result, the way that MRF missions apply the law — as much as the methodology used to establish facts — can affect the mission’s credibility. This paper addresses this issue by focusing on the selection and application of legal lenses in MRF mechanisms. The paper aims at describing and analyzing the current practice to identify strengths, gaps, and challenges, with a view to presenting options to improve the ways that MRF practitioners articulate and apply legal frameworks.

This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. “System 1” cognition is unconscious, fast, and associative, while “System 2” involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be affected by irrelevant stimuli. The dual-process approach, by contrast, is able to explain both probative and prejudicial influences on decision making. As a demonstration, I use the dual-process framework to explain the surprising result in People v. Rivera, a case in which a jury convicted a man of rape and murder despite the admission of exonerating DNA evidence. This result, I suggest, was not the product of an unusually lazy or unreasonable jury but rather illustrates the way that our ordinary cognitive processes can lead us to endorse quite unreasonable results if primed using certain common prosecutorial strategies. After elaborating the dual-process model in a descriptive form, I then consider some of its normative implications. Many leading evidence scholars have argued that verdicts resting on “pure” or “naked” statistical evidence are problematic. Although the dual-process model of fact-finding is descriptive rather than normative, it nevertheless provides surprising insight into this debate by showing that our intuitive discomfort with verdicts that are based on purely statistical data may arise from the failure of such evidence to speak in terms that our unconscious, intuitive System 1 can process reliably. In such circumstances, intuitions about outcomes should be treated with caution. Thus, what unites the seemingly disparate examples of the Rivera trial and the naked statistical evidence debate is that, in both contexts, it feels right to do wrong.

The following contribution zeroes in on the diverging responses that permeate international adjudicative practice pertaining to international disputes arising out of scientific controversies. Drawing on the idea that scientific fact-finding is as much a struggle for argumentative persuasiveness as traditional fact-finding and law-interpretation, this article identifies and critically evaluates four attitudes of international judges and arbitrators. It shows that, when it comes to scientific fact-finding, adjudicative bodies are in a constant flux between nihilism, protectionism and outsourcing. It further demonstrates that similar dynamics can be observed with regards to the weighing of scientific knowledge in cases when adjudicators decide to outsource it to experts. This paper subsequently argues that when confronted with scientific fact-finding, international adjudicators are dealing with knowledge that is as unstable as the law and which brings them to make a choice between different types of reasoning or rationality. It ultimately makes the argument that the question of scientific fact-finding inevitably confronts international judges and arbitrators with a choice of epistemic rationality.

This article follows in the heels of an article entitled The Limited Diagnosticity of Criminal Trials. That article applied a body of experimental psychological research to examine how well juries and judges perform the diagnostic function of distinguishing between factual guilt and innocence. It concluded that fact finders encounter numerous difficulties in drawing correct inferences from the evidence presented at trial. This article examines a number of mechanisms that are said to promote the accuracy of the fact finding task: cross-examination, jury instructions, jurors’ assurances of impartiality, the prosecution’s heightened burdens of proof, jury deliberation, and judicial review by appellate or post-conviction courts. This examination concludes that to a limited extent, these mechanisms do indeed enhance diagnosticity, but they often turn out to be ineffective, and even detrimental to the process. It follows that the truth evincing potential of criminal trials is not as strong as generally believed.

In recent decades, the international community has exhibited an increased devotion to civilian protection and promotion of international legal accountability. To activate this sense of responsibility, during armed conflicts and internal disturbances, international actors have created numerous monitoring, reporting, and fact-finding (MRF) mechanisms to investigate potential violations of international law. But the academic and policy communities have not kept pace with the growing importance of these mechanisms, and MRF practitioners frequently suffer from a paucity of sufficient guidance. As a step toward filling this research gap, this article presents an in-depth examination of MRF mechanisms. The article first presents an analytical framework that examines key distinctions between different MRF activities and presents guiding principles applicable to all MRF mechanism types. Examining past MRF practice through the lens of this framework, the article then explores the process of creating MRF mechanisms. The article concludes by sketching possible next steps for the MRF community to build on this research foundation and develop standards for more effective MRF implementation.

This article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation. Yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically undertheorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.This Article begins, in Parts I-III, by identifying the three criteria that should govern the deference question. Part I argues that courts should consider whether the deference claim is based on a justification of expertise or authority. This distinction tracks a similar distinction made in the context of administrative agency claims for deference in interpreting statutes. Obviously, this latter context is quite different from the one considered in this Article; still, lessons from that doctrine help us understand how expertise and authority justifications should influence the deference question this Article considers. Part II explains how deference claims require consideration of the type of fact at issue. It proposes a rough taxonomy of facts whose distinctions are relevant to the deference question, and explains how those distinctions address that question. Part III then then explains how deference claims turn on the details of the underlying doctrine the finding seeks to apply.Based on the insights gleaned from this analysis, Part IV identifies six principles guiding the deference inquiry. One of these principles suggests, contrary to conventional wisdom, that empirical findings merit the least judicial deference. Another principle analogizes to equal protection law to explain why findings that precisely target a constitutional rule may also be appropriately subject to more searching judicial scrutiny. Part V applies these principles to congressional deference claims in several very different contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. The Article concludes with a call for further research in order to continue finding better resolutions to this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.

Hot news is factual, time-sensitive information ranging from baseball scores to the outbreak of war. In recent years, hot news has found its own niche among legal scholars and courts. When deconstructed, though, hot news is simply information and, like most information, it has a public good character. The problem ultimately is that news is non-excludable and non-rivalrous – discoverers or creators of hot news cannot exclude others from using the news and hot news is not destroyed when used. This means it may be produced at levels that are less than optimal.The critical element in hot news is lead time. In periods of less technological sophistication, the discoverer and reporter of news could depend on lead time, even if only a few hours, during which it was the exclusive source of the information. In today’s internet-based world, lead time is nonexistent. The most painstakingly gathered and expensive fact-based research can be re-reported within moments of its publication. This inevitably decreases the incentive to do original reporting. A public response, in the form of state or federal legislation, to a shortage of hot news entails a public investment in a legal regime designed to protect exclusivity for a limited time. During that time, those first discovering the news and reporting it can internalize the benefits of their efforts. When viewed from this perspective, certain standards are important. Society gains the most when hot news is discovered and reported as long as the benefits, however defined, outweigh its costs and those costs are incurred by those most efficient at discovering and producing the news. This leads to several sub-goals. First, there is no reason to protect hot news that would be reported without public intervention. Second, care must be taken to define the type of news that will be protected. In particular, hot news should have a functional definition – one that is consistent with the goal of ensuring news that otherwise would be stifled by the free-rider effect is published. This is a tall order and it is doubtful that a hot news policy can follow the functional definition completely. Nevertheless, without a target, efforts to develop a sensible hot news policy are likely to fall short of the goal of maximizing useful fact finding and reporting while avoiding unnecessary costs. Although news gathering and reporting has a cost, so does a policy of allowing exclusivity to encourage the same gathering and reporting. For example, during the period of exclusivity, the reporting entity may have a degree of monopoly or market power that allows the entity to increase the cost of access to the information. In addition, others will not be able to report the information themselves even though wider dissemination may be beneficial to the public. Finally, any system of regulation involving an exclusivity policy will create administrative costs. These costs are also part of the analysis.This Article describes the current state of hot news law and examines the issues that must be addressed in developing a functional and a rational approach to hot news. It describes the general requirements of such a system and assesses three proposals explored by the Federal Trade Commission. Finally, it describes the specifics of proposed federal legislation.

This paper is based on doctoral project which presents an approach to fact-finding in international criminal procedure. The main purpose of the doctoral project is to examine how tensions between adversarial and inquisitorial influences in the fact-finding process can be bridged. A related question in the study is how to solve inconsistencies and gaps in procedural rules. The doctoral project also covers the historical tribunals of Nuremberg and Tokyo but this part is excluded in the present paper. The approach to fact-finding does not only relate to the evaluation of evidence but also other procedural activities, including collection of evidence. This paper will first examine the process of fact-finding (section 2). Next the consequences of this approach will be discussed in relation to collection of evidence (section 3) and the power of the judges to order the production of additional evidence (section 4). Finally, the paper will discuss whether the approach of disproving alternative hypotheses is relevant for international criminal procedure. This is also one of the key questions for the discussion May 30, 2011 when this paper is presented.

The purpose of this paper is to explore the various mechanisms and processes through which tribunals can assume a greater role in hearings than they have in the traditional adversarial process. As the papers in this collection by Robin Creyke and Robert Thomas illustrate, the idea that tribunals should be understood in terms of their similarity to (or deviation from) a court hearing, in which the judge is a neutral and passive arbiter, is giving way to a new paradigm in the Commonwealth in which an accessible administrative hearing featuring active adjudicators is a norm, not the exception. At the same time, any administrative proceeding which is not adversarial is too often simply lumped together as – inquisitorial.‖ An inquisitorial proceeding is generally one where the decision-maker engages in fact finding. We suggest most administrative proceedings may be located somewhere between the model of the courtroom and the model of the inquiry and that these hybrids and halfway houses merit more attention.

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

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY’s work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

The paper aims at investigating the relationship between Regulatory and Supervisory effects on banks risk management. Both descriptive and inferential statistics were used. A total of 260 questionnaires were distributed to six six principal regulators and supervisors to administered the activities of the financial institutions, with more emphasis on Deposit Money Banks (DMBs). A purposive sampling techniques was employed in the collection of the data. Both Chi-square and Z-Distribution were employed. The result show that there exist a relationship between Regulators and supervisors in reducing banks risk but a very weak correlation exist. Based on this fact finding it is recommended that the regulators needs to be more proactive and consolidate the strategy in ensuring a sound financial system.