Just facts : legal fact-finding during armed conflicts
- This dissertation investigates the impact of legal rules on fact-finding during armed conflicts. Several procedural and psychological factors make legal fact-finding during armed conflicts particularly challenging. Among these factors are doctrines of secrecy, ex parte proceedings, and security privileges, as well as phenomena such as groupthink and overestimation of risks, motivated reasoning and denial. This dissertation sheds light on these challenges to legal fact-finding, and offers methods to mitigate their detrimental impact on the production and dissemination of facts. To achieve these goals, this dissertation first utilizes qualitative and quantitative methods to study the institutional processes of what I term 'the legalization of truth' -- the adoption of legal discourse to interpret facts and determine the truth, inside and outside of the courtroom. Second, I field survey-experiments to test assumptions about fact-finding strategies which are widely held by practicing lawyers and scholars, as well as by many international and national organizations. Using experimental methodology allows me to directly measure the impact of legal fact-finding on beliefs concerning contested events such as war crimes. Third, I use interdisciplinary theoretical framework and mixed-methods (including content analysis and interviews) to shed light on the role and treatment of facts in legal proceedings, including in targeted killings and security detentions decision-making processes. Each of the three articles comprising this dissertation focuses on a different aspect of legal fact-finding during armed conflicts: The Legalization of Truth article focuses on the receptiveness of the public to legal fact-finding reports. Using survey-experiments, I measure the impact of legal fact-finding on people's attitudes and beliefs concerning contested events such as war crimes. The article finds that legal fact-finding processes may intensify controversies concerning 'what happened, ' rather than produce 'undisputable facts'; the Reducing Uncertainty article analyzes legal fact-finding in targeted killings decision-making, demonstrating how fact-finding and risk assessments may be undermined by individual and institutional biases, and how fact-finders may be captivated by their pre-existing narratives and beliefs; and The Secret Keepers article focuses on judicial fact-finding during security detention hearings, finding that facts are not being 'found' via rigorous inquisitorial process, but are rather being produced by security agencies, and are uncritically adopted by the Court. Being aware of their limitations in assessing the facts, judges may discount or marginalize facts as a basis for decision altogether, focusing, instead, on normative judgments and legal interpretations. While relying on different methods and focusing on diverse aspects of legal fact finding, the three articles, put together, create a new framework to understand the ways in which facts may be undermined or marginalized during sensitive legal processes; as well as the impact of these processes on social controversies about wartime events. In our 'post truth' era, where 'alternative facts' are often produced to counter unwelcomed facts and narratives, it is more important than ever to seek new and better ways to produce and introduce information, and prompt reforms based on the lessons learned.
|Type of resource
|electronic; electronic resource; remote
|1 online resource.
|Stanford University, School of Law.
|Martinez, Jenny S
|Martinez, Jenny S
|MacCoun, Robert J
|MacCoun, Robert J
|Statement of responsibility
|Submitted to the School of Law.
|Thesis (JSD)--Stanford University, 2017.
- © 2017 by Shiri Krebs
- This work is licensed under a Creative Commons Attribution Non Commercial No Derivatives 3.0 Unported license (CC BY-NC-ND).
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