Legal Accents, Legal Borrowing

Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement

James L. Nolan
Copyright Date: 2009
Pages: 264
https://www.jstor.org/stable/j.ctt7t78x
  • Cite this Item
  • Book Info
    Legal Accents, Legal Borrowing
    Book Description:

    A wide variety of problem-solving courts have been developed in the United States over the past two decades and are now being adopted in countries around the world. These innovative courts--including drug courts, community courts, domestic violence courts, and mental health courts--do not simply adjudicate offenders. Rather, they attempt to solve the problems underlying such criminal behaviors as petty theft, prostitution, and drug offenses.Legal Accents, Legal Borrowingis a study of the international problem-solving court movement and the first comparative analysis of the development of these courts in the United States and the other countries where the movement is most advanced: England, Scotland, Ireland, Canada, and Australia. Looking at the various ways in which problem-solving courts have been taken up in these countries, James Nolan finds that while importers often see themselves as adapting the American courts to suit local conditions, they may actually be taking in more aspects of American law and culture than they realize or desire. In the countries that adopt them, problem-solving courts may in fact fundamentally challenge traditional ideas about justice. Based on ethnographic research in all six countries, the book examines these cases of legal borrowing for what they reveal about legal and cultural differences, the inextricable tie between law and culture, the processes of globalization, the unique but contested global role of the United States, and the changing face of law and justice around the world.

    eISBN: 978-1-4008-3079-4
    Subjects: Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xii)
  4. INTRODUCTION
    (pp. 1-6)

    On a drizzly December morning in 1992, a fourth-grade boy at Red Hook’s Public School 15 in Brooklyn, New York, got in a fistfight with another nine-year-old. Upset by the altercation, the boy walked away from school in tears. When Patrick Daly, the popular principal of P.S. 15, learned of the situation, he left the school to look for the boy—an action consistent with the character of this man, who had been teaching at the school since 1966 and had been principal since 1986. Walking through Red Hook’s crime-ridden housing projects in search of the young boy, Daly eventually...

  5. Chapter One PROBLEM SOLVING AND COURTS OF LAW
    (pp. 7-23)

    In his bookThe Homeless Mind, Peter Berger identifies a “problem-solving” orientation as a defining feature of modern consciousness. “Problem-solving inventiveness,” as he puts it, is a dominant sensibility in our modern technological society. According to Berger, this form of consciousness not only is found among those working directly in the productive processes of industrial capitalism, but also is carried over into other sectors of public and private life.¹ From this vantage point, it may not be altogether surprising that a legal innovation emerging at the turn of the twenty-first century would specifically refer to itself as aproblem-solvingenterprise....

  6. Chapter Two LAW AND CULTURE IN COMPARATIVE PERSPECTIVE
    (pp. 24-42)

    A useful starting point for making sense of the international transplantation of problem-solving courts is found in the expansive literature on globalization. An important question explored within this literature is the extent to which the process of globalization is best characterized as one ofhomogenization. That is, one “popular intellectual view,” as Roland Robertson puts it, holds that “the entire world is being swamped by Western—more specifically, American—culture.”¹ Homogenization, as such, is viewed as the process by which American-styled capitalism, mass culture, and consumerist habits are imperialistically advanced in a world that is progressively more interconnected through electronic...

  7. Chapter Three ANGLO-AMERICAN ALTERNATIVES: ENGLAND AND THE UNITED STATES
    (pp. 43-75)

    Outside of the United States, England is among the countries furthest along in transplanting variations of these American judicial innovations.¹ Since 1998, England has initiated three types of problem-solving courts: drug courts, domestic violence courts, and community courts. In each instance, the courts were inspired by their U.S. counterparts but have taken on different forms as influenced by the particularities of local circumstances. In keeping with statements reviewed in chapter 2, English practitioners see themselves as adapting the American model to suit their own local needs. Particularly in the early years, English versions of problem-solving courts assumed qualities noticeably distinct...

  8. Chapter Four COMMONWEALTH CONTRASTS: CANADA AND AUSTRALIA
    (pp. 76-108)

    Two other major importers of problem-solving courts are the commonwealth countries of Canada and Australia. Though the United States is often credited as the primary source of inspiration, officials from Canada and Australia also cite the influence of other countries, particularly the United Kingdom, in discussing the importation and growth of problem-solving courts in their respective countries. Furthermore, Canadians and Australians make reference to the role of each on the other, which is understandable given the similarities in the scope and timing of emerging problem-solving courts in both places. Officials in both countries see many similarities between Canada and Australia...

  9. Chapter Five DEVOLUTION AND DIFFERENCE: SCOTLAND AND IRELAND
    (pp. 109-135)

    With an affinity similar to that found between the two commonwealth countries considered in the last chapter, Ireland and Scotland are a natural pair. Both countries established their first problem-solving courts in the same year, with the launch of the Dublin and Glasgow drug courts in 2001. Six years later, both countries announced plans to start community courts in the same two cities, modeled after community courts in New York and Liverpool. Problem-solving courts in Scotland and Ireland have progressed at a pace slower than that of the four other countries considered in this study. As of 2007 only a...

  10. Chapter Six AMERICAN EXCEPTIONALISM
    (pp. 136-156)

    Having now examined the development of problem-solving courts in all six common law countries, it is possible to organize and analyze the data according to several broader comparative themes. For example, we have found that the influence of therapeutic jurisprudence is more pronounced in the United States, Canada, and Australia than it is in England, Scotland, and Ireland. The structural limits of problem-solving courts in England—determined as they are by the unique qualities of the magistrate system—place these courts on one end of the spectrum; the greater flexibility and power afforded judges in American problem-solving courts locates these...

  11. Chapter Seven AMBIVALENT ANTI-AMERICANISM
    (pp. 157-178)

    At a 1999 NADCP conference in Miami, an international panel, comprising representatives from Canada, Scotland, Australia, and the United States, was assembled for the purpose of discussing the establishment of international standards for drug courts. In addition to the panel members, others participating in the discussion included representatives from Ireland and England. Concern about “American cultural imperialism” was among the topics addressed during the session. The Scottish panelist, who had by his own account been promoting drug courts in Scotland for three years, offered the following anecdote to illustrate the anti-American attitudes that had sometimes frustrated his promotional efforts:

    I...

  12. Chapter Eight BUILDING CONFIDENCE, JUSTIFYING JUSTICE
    (pp. 179-196)

    As discussed in chapter 1, new specialty courts promise to address problems at three different levels: the problems of individual offenders, the problems of a troubled criminal justice system whose relevance and legitimacy is somehow in question, and the problems of society at large. These are, of course, not unrelated categories. To solve the problems of individual offenders is also to address, at least in small measure, society’s problems on a broader scale. As it concerns the legitimacy of the judiciary itself, advocates of problem-solving courts in the United States regularly describe the American criminal justice system as suffering from...

  13. NOTES
    (pp. 197-234)
  14. SELECTED REFERENCES
    (pp. 235-242)
  15. INDEX
    (pp. 243-250)