Monday, December 8, 2014

MacMahon, "The Inquest and the Virtues of Soft Adjudication"

Paul MacMahon (London School of Economics - Law Department) has posted "The Inquest and the Virtues of Soft Adjudication," which is forthcoming in the Yale Law & Policy Review. Although the essay is largely focused on contemporary policy, it includes a substantial historical section -- thus we are noting it here. Here's the abstract:
An inquest is a quasi-judicial proceeding resulting in a verdict as to the cause and manner of a suspicious or unusual death. Inquests are an important feature of most common-law legal systems, but have been ignored by American legal scholars for decades. In fact, inquests continue to be held in some American localities. Inquests are intriguing partly because they are inquisitorial proceedings in stereotypically adversarial common law systems. Their determinations do not directly affect anyone’s legal rights or duties, but may be highly consequential. This Article uncovers the American inquest, and explores the case for revamping and reviving the institution. Precisely because their verdicts do not carry coercive consequences, the Article contends, inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event. Accordingly, they have significant advantages in the furtherance of important societal goals, including accountability for wrongful deaths, the collection and dissemination of information about risky activities, and helping the deceased’s family come to terms with a traumatic death. The Article focuses on one particular area where suitably designed inquests could be particularly effective: deaths at the hands of police and prison officers. More broadly, the inquest is an example of legal institutions providing non-binding-yet-formal-pronouncements about past events, a phenomenon I call “soft adjudication.”
The full article is available for download here, at SSRN.

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