Luigi Cominelli

Cognition and the Law

With the demise of nineteenth-century behavioral mechanicism came the need to chart a new course in the effort to work toward a modern theory of behavior, and so also of law-oriented behavior, and it was the whole set of mentalist and behaviorist conceptions that pointed the way forward. Ever since the Humean intuition that the passions dominate over rationality and propel the will, the idea emerged that pure subjectivity could explain much more than just its own capture of reason, but this idea couldn’t be fully developed until the analysis of mental functions found at its disposal the full arsenal of the contemporary neurosciences (Oliverio 2012) and cognitive science (Williams 2001). Neuroscience and the cognitive sciences (Anolli and Mantovani 2012, p. 84) changed the paradigm in the social sciences, too, because they showed how it was possible to bridge the gap between biology and culture, matter and mind (Pinker 2002, pp. 34, 51).

The Social Subject as a Legal Actor

Sociologists who deal with legal phenomena often live a paradox and an internal contradiction that they are not always able to admit or to identify or resolve. This is especially true of holistic approaches to socio-legal studies, for which the individual is in some way, at different levels of depth, a function of the social group or the social system. The legal phenomenon is in fact intrinsically individual. Every modern legal conception, wittingly or not, is based on individual rights and duties. The collective implications of the law are perfectly clear to lawyers and laymen, and when needed they can be translated into institutions such as collective responsibility or group sanctions, but the common unit of legal analysis is the individual with some legal capacity. Think of the Roman brocard Haec sunt principia iuris: honeste vivere, alterum non laedere, suum cuique tribuere (“The basic principles of right are: to live honorably, not to harm any other person, to render each his own” [Digest 1.1.10; Watson 1985, p. 2]). The very fact that we are now witnessing a renewed debate on collective rights and action shows that the perception of the law we have inherited has always been intrinsically individualistic.

The Psychic Subject as a Legal Actor

Law and psychology are disciplines that live in separate wings of the same palace. Both share the goal of predicting and controlling human behavior. However, the law relies necessarily, though often unknowingly or naively, on psychological theories and paradigms it cannot do without. With regard to psychological paradigms, sociological creationism has implicitly expressed the same indifference to which interactionism and other microsociological theories had been condemned, thus repeating the old mistake of placing psychology and sociology on two separate levels that do not communicate. The gist of this critique sounds more or less like this: psychology studies behavioral processes that are inevitably individual and is thus too “contaminated” by the biological factor to offer a satisfactory narrative of social processes.

Nature, Evolution, and Law

If we can draw a preliminary conclusion from the previous chapters, it is that sociological theory and the social sciences in general have not yet articulated or proposed in a convincing and organic way a theory of the motives of human behavior that can adequately explain the legal phenomenon. In part, this is because, as Gallino (1982, p. 99) has argued, the social sciences have until recently been deprived of a theory of social behavior, stuck as they were in the dogma of social individuality conceived as a blank slate, and in the extremist positions of culturalism.

Brain-in-Negotiation: come testare e potenziare le competenze di problem solving cooperativo tra i professionisti del diritto attraverso la Brain Computer Interface

Negotiating skills are not part of the traditional lawyers training. Today, however, new problem-solving skills are required of the lawyer to settle disputes consensually before trial. This article outlines the methodology for a pilot study that investigates the cooperative problem-solving skills development through neuroscientific devices that are non-invasive, portable and therefore usable in ecological contexts. The use of Brain-Computer-Interface would allow trained negotiators to explicitly develop neuro-cognitive tools, with greater interaction between intuitive and analytical thinking systems.

Mediators with Italian Characteristics. Styles, Conflict Attitudes and Settlement Rates

Mediation has been in recent years at the center stage of European legislation. Through the collaboration of the conciliation service of the Chamber of Arbitration of Milan, we analyzed a questionnaire sent to 200 mediators registered with the mediation providers managed by the Italian Chambers of Commerce. A major issue, also be related to the attitude to the conflict, was the style of mediators. To determine the stylistic orientation of the mediator, we tried to find out what types of behavior by respondents corresponded to his/her own style as a mediator, and the style that ideally they believed the most correct. In this way we tried to typify styles, similarly to what had already been done with the attitudes to the conflict, but without using explicit definitions, and so avoiding a labeling that would undoubtedly threaten to target the mediator in a certain direction. We sought to investigate three areas relevant to the professionalism and attitudes of the mediators: 1) the style of mediation; 2) the personal attitude towards the conflict; 3) effectiveness in leading the parties to a negotiated agreement in mediation. As for the distribution of the style of mediation compared to the characteristics of the respondents, there were no major differences by gender, age and experience of mediation. Compared to the attitudes to conflict resolution, there is a majority of collaborating styles (35%), followed by the avoidant styles (17.8%) and competitive (16:56%). The styles less represented are compromise (28.8%) and accommodation (7%). However, about 15% of the respondents reported mixed attitudes. The distribution of the styles of conflict management is homogenous even compared the experience of mediation and the number of mediation agreements. However, the avoidant style shows a significant difference with regard to the number of mediations closed.We then probed the relationship between the variables related to characteristics of respondents (age, length of service, number of mediation, mediation style and attitude to the conflict) through correlation analysis. The index r of pearson shows no correlation between age and other variables. Instead, the level of experience, measured as the number of years since the first mediation at the time of filling in this form, not only correlates, as expected, with the number of mediations conducted, but also with the style of mediation. Expert mediators, in fact, bring more transformative style. There were no significant correlations between the style of mediation and the attitude of the respondents to the conflict. This result contrasts with the prejudice that mediators with a directive approach (ie evaluative mediators, and sometimes even transformative mediators) have a higher rate of agreement. A second significant result is that individuals with economic education have a higher rate of agreements with respect to the lawyers. In this regard, it is interesting to note a potential association between success rate and post-graduate training. In fact, although not by a significant difference due to the relatively small sample, respondents with a post-graduate training in economics or accounting, report rates of agreement significantly higher than those who reported a background in law, in ADR, in psychology or who do not report a post-graduate training. Finally, the gender factor was significant compared to the rate of agreement. The anova test on the rate of mediation agreements shows a significant difference between men and women. In particular, men show a statistically higher rate of agreement of women. The conclusion of an agreement between the parties is not the only way to determine the effectiveness of the mediator. It is known that in many cases, even a mediation which is not crowned by an agreement, leads the parties through a process of mutual recognition and to manage the conflict underlying the dispute, which results in a resolution only in the medium-long term. In these cases, much of the work of mediation occurs long after the mediator has concluded the process. However, in this historic phase of mediation in Italy, we felt that the rate of agreement between the parties could be a satisfactory measure of the effectiveness of the mediator. The Italian model is definitely legalistic, but its practical results seems not so distant from the results obtained in voluntary models. Again, it seems that the style of the mediator might be of some use as a paradigm of orientation with respect to each phase of the process, but has no sufficient predictive value to be confirmed as a key to the functioning of the mediation.

Avvocati in trasformazione. note brevi su organizzazione e deontologia

La professione forense e in trasformazione e stiamo vivendo, specialmente nel nostro paese, un periodo in cui tale trasformazione e travolgente. La perc ezione pubblica del ruolo sociale dell’avvocato ingenera aspettative sugli standard etici e deontologici che ci attendiamo dalla professione. Messe alla prova del quotidiano, le aspettative tradite inducono un’ostilita generalizzata verso gli avvocati come classe, che pero non si traduce sistematicamente in una cattiva relazione tra avvocato e cliente. La professione forense e stata del resto messa sotto pressione, cosi come tutta l’amministrazione giudiziaria, dai benchmark internazionali che misurano l’efficienza del sistema giustizia. Due aspetti svettano nelle analisi empiriche sugli avvocati: la dimensione organi zzativa e l’autoregolamentazione deontologica. I servizi legali, per la clientela composta da repeat players, si sono trasformati in una commodity. I clienti chiedono rapidita ed economicita, e non esitano a mettere in competizione tra loro gli avvocati per ottenere la migliore offerta al ribasso. La professione e ormai sovraccarica di aspettative sociali, schiava del formalismo e sbilanciata verso i rimedi. Paradossalmente il cliente-individuo e un concetto puramente metafisico, perche la formazione del giurista non contempla alcuna capacita relazionale, negoziale o comunicativa.

The world trade organization system in context: helping development through the enforcement of non-discriminatory trade

The popularity and success of the World Trade Organization dispute settlement system has amazed both scholars and practitioners. The WTO Dispute Settlement Understanding (DSU) came into force in 1995, as the evolution of the old GATT dispute resolution system (Hudec 1991). The DSU regulates the claims on infringements made by parties to a number of treaties regulating trade (WTO Agreements). It establishes a classical international jurisdiction, where only states are allowed to be parties, even though a limited participation for private entities, notably NGO’s, has been gradually admitted (Bossche 2008). The WTO Dispute Settlement System comprises a range of remedies including consultations (ie negotiation), mediation, litigation and arbitration1. A “Panel” and “Appellate Body” are respectively the first degree and the appeal instances for cases brought to adjudication.

Cittadini e amministrazioni: burocrazie disfunzionali e diffusione dei rimedi

Il concetto di burocrazia ha vissuto una proliferazione che ne ha resa impossibile una definizione univoca comune nelle scienze sociali. L’unico paradigma comunemente accettato e quello weberiano della burocrazia come espressione necessaria del potere razionale-legale. Il concetto di burocrazia porta tuttavia con se due connotazioni esplicitamente negative che nella percezione pubblica rappresentano anche i due maggiori problemi: l’inefficienza delle organizzazioni pubbliche e l’arbitrio dei funzionari. Tra i caratteri della personalita burocratica, Merton include il ritualismo e la deresponsabilizzazione. Crozier nota inoltre che piu le organizzazioni burocratiche diventano grandi e complesse, piu la responsabilita delle decisioni si sposta verso l’alto, creando un collo di bottiglia decisionale. Le ricerche empiriche condotte da Jochimsen in Germania sembrano confermare che un aumento di dimensioni delle organizzazioni puo portare a significative diseconomie di scala. Piu di recente, le Teorie della scelta pubblica contestano l’assunto del funzionario come interprete dell’interesse collettivo. La crisi del welfare state ha portato infine a un contenimento delle organizzazioni pubbliche, e all’affermarsi delle dottrine del New Public Management, che affermano la superiorita del settore privato e suggeriscono l’introduzione nel settore pubblico dei meccanismi del mercato e della competizione. Nonostante le trasformazioni radicali del New Public Management, lo scetticismo verso le organizzazioni pubbliche e comune a tutti i paesi occidentali, come dimostrano le piu recenti ricerche condotte a livello europeo da Eurobarometro. Si accenna infine alle ricerche empiriche condotte sull’efficacia dell’ombudsman nell’incidere sulla percezione pubblica della burocrazia e nel mutarne le prassi.