Freedom to bargain and disputes’ resolution

When two parties are embedded in a dispute, they generally have the possibility to bargain before an external solution is imposed to them, notably through alternative dispute resolution. This bargaining phase may either result from a choice of disputants to negotiate or be imposed by laws or legal contracts. The aim of this paper is to analyze the differences in terms of parties’ bargaining behavior, depending upon the fact that bargaining has been imposed to them or comes from their own will. We conduct an experimental analysis and find out that, under some conditions, a procedure in which parties are forced to bargain leads to more agreements than when parties are free whether to do so. This main result is interpreted in the light of behavioral economics.     

Adorno,Freedom and Criminal Law: The ‘Determinist Challenge’ Revitalised

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions.     

Coase’s world and Coase’s blackboard

In this contribution I focus on a particular characteristic of Ronald Coase’s work, as exhibited in “The Problem of Social Cost”: his ability to force upon his audience a clearer grasp of reality than they previously held. More specifically, I aim to consider to what extent the “blackboard economics” that Coase himself derided have been avoided in a Coasean world, taking that expression to refer in some sense to a world where Coasean insights can flourish, and as such to be a world not simply of Coase’s own making but a world that has been developed by others in applying the Coase Theorem. My strategy is to interrogate the nature of a Coasean world through developing a framework that can look more closely at different approaches to theoretical modelling, the different worlds involved in these models, and the different positive and normative applications that can be derived from them. I shall further consider whether the understanding of the law that inhabits a Coasean world reflects a “real-world” legal environment. Finally, I shall seek to assess the impact of Coase’s work on our understanding of the relationship between law and economics, in our world.     

Love and Communism: Jean-Luc Nancy’s Shattered Community

This paper takes as is its point of departure Jean-Luc Nancy’s argument that the occidental idea of community in the modern era has always meant a kind of project or work whose intention was to glorify death in order to redeem and make it meaningful. It does so in order to return the community to its self-identity; to inter or assimilate what intrudes. In so doing, it also produces us as beings who cast this glorious lost past retrospectively. Recalling a lost original communalism, then, is not only politically dangerous, it is a symptom: it operates as a kind of compensatory reinstatement of an imaginary lost unity. On this view, casting ‘back’ to a glorious communal past must not only be resisted on political grounds, it also provides, as a symptom, a way to undertake that resistance. In this paper, I investigate a narrow dimension of Nancy’s strategy for resisting this lure: Nancy’s notion of shattering reveals that the ‘lost object’ of community is a melancholically interred, narcissistically invested retroactive creation of the very work of mourning he resists and re-thinks. The work of mourning on this view, can itself only be resisted by a certain disouevrement or unworking.     

Director’s liability and investor protection: a law and finance perspective

This article conducts an analysis of director’s liability in listed firms using modern finance theory. The paper describes how the use of special general clauses in Danish law regulates director’s liability. It is shown how risk and return combinations may assist in determining whether management has violated the business judgment rule. The analysis shows that this legal doctrine is optimal from an economic perspective. The article introduces the concept of “temporal relatively of the shareholder equality principle” which can be used to determine whether the interests of minority shareholders have been set aside. It is shown that the principle of shareholder equality must be subjected to both an ex ante, as well as an ex post assessment. Moreover, courts should be reluctant to interfere in situations where there has been an unequal distribution of gain (or loss) ex post. The theoretical arguments are illustrated by analyzing a leading Danish court case that involved the squeeze out of minority shareholders in the Danish telecom company. The paper also analyzes the incentive effects of derivate suits and suits commenced by individual shareholders. It is shown that the former creates a free rider problem whereas in the latter situation, shareholders are not fully able to internalize their externalities.     

The Siren’s Song: Federalism and the Cops grants

The federalization of crime control has become a focal point for criminal justice researchers. Because the federal government is limited in how it can affect crime, it often assumes the role of funding agent to state or local governments and places restrictions on the use of these monies. Generally, no consideration is given to state or local concerns. As a result, national crime control policy often becomes mired in issues of federalism. One unintended consequence is the creation of a Siren’s Song, where state and local agencies simply pursue funding dollars to expand their budgets rather than to adopt beneficial policies or make meaningful changes. This paper illustrates this point by examining the federal “100,000 Cops” initiative in one rural West Virginia jurisdiction.     

Imperial Metaphors and Native Savagery: Law’s Imagery,Crime and Empire

For all of law’s emphasis on its originary claims, this article argues that modern law has always been heavily dependent on categories and a set of images and metaphors for constituting identities. The presence of a racialised Other in the written, verbal and visual form all reveal striking parallels in the metaphorical forms used in the categorisation of people in temporality. In essence, law’s commitment to principles of universality and equality, is practically sustained only by the reinvented and rationalized exclusions of racial particularity, and hierarchies of otherness, which are variously exotic, dangerous and irredeemable. What is clear from this binary division is that the processes of criminalizing the unruly heathens, the wayward savages and the lower strata in the early nineteenth century, was part of a process of knowledge production which drew heavily upon key images of morality and of pathology. Such a stratum, as in the parallel process in the colonies amongst the criminal savages, was anxiously understood through a proliferation of stereotypes and labels imbued with this threatening menace. This article further explores how this imagery was policed and disciplined, and also opens up the possibility to assess how these images impart the same mythic forces in the ongoing acts of violence and specters of postcolonial imperialism that persist in its new global forms. This article aims, to reveal that legal forms and identities, far from being stable in their construction, are inherently unstable, and remain forever in an ambivalent relationship to the things being constructed and those engaged in the construction.     

‘She’s White and She’s Hot,So She Can’t Be Guilty’: Female Criminality,Penal Spectatorship,and White Protectionism

Despite mainstream criminology’s burgeoning interest in issues of race, class, and gender, very little scholarship has examined whiteness and its attendant privileges in understanding public discourse on criminal offenders. This paper examines the role of penal spectatorship as a discursive mechanism by which white, female offenders are protected in public spaces by virtue of their racial and gender identity. Using a content analysis of comments posted on the mug shot images of white women on a popular ‘mug shot website,’ we find that these women are viewed as victims of circumstance deserving of empathy and redemption rather than as criminals. We offer ‘white protectionism’ as a means by which whites extend privilege and protection to other whites who transverse the boundaries of whiteness through criminality to guard against ‘deviant’ or ‘criminal’ designations. These findings add to our understandings of penal spectatorship as yet another tool of white supremacy operating in the Post-Civil Rights era of mass incarceration.     

Gender and Risk Assessment Accuracy: Underestimating Women’s Violence Potential

Understanding factors that contribute to mental health professionals (MHPs) accuracy in assessing patients risk of violence can inform efforts to improve accuracy and to integrate risk assessment technology with practice. Based on a sample of 147 clinicians who assessed 680 patients in a psychiatric emergency room, this study investigates the influence of patient gender, MHP gender, and their potential interaction on MHPS risk assessment accuracy. The results indicate that MHPs of both genders are particularly limited in their ability to assess female patients risk of future violence. This finding was not limited to a particular professional group and was not attributable to gender-related differences in violence. Implications for future research on the judgment processes that may underlie MHPs limited accuracy with women and for training programs in violence risk assessment are discussed.     

America’s most wanted criminals: comparing cybercriminals and traditional criminals

Reports of cybercrime have escalated over the past decade. While these crimes have increased, our understanding about the dynamics surrounding cyber offenders has not kept pace. Few studies have considered the characteristics of serious cyber criminals in comparison to other types of criminals. To fill this void in the literature, we examine a sample of cybercriminals appearing on the FBIs Most Wanted List and compare the characteristics of these offenders to other most wanted offenders. Results suggest that the most wanted cyber offenders are similar to other offenders in that it is a male-dominated offense category, but they are different from other offenders in that they are younger and more likely to exhibit certain types of physical and lifestyle characteristics. Implications for policy and future research are provided.     

Britain and European Human Rights Law: An Author’s Apology

Netherlands International Law Review - In four books published between 1990 and 2008, I, along with my two co-authors, was very optimistic about the up-ward trajectory of European human rights law,...     

Internal and external networks,and incubatees’ performance in dynamic environments: entrepreneurial learning’s mediating effect

The Journal of Technology Transfer - Business incubators (BIs) have gradually evolved to focus increasingly on the development of networks and network functions. However, existing literature...     

Moore’s Truths About Causation and Responsibility: A Reply to Alexander and Ferzan

In this response to the review of Moore, Causation and Responsibility, by Larry Alexander and Kimberly Ferzan, previously published in this journal, two issues are discussed. The first is whether causation, counterfactual dependence, moral blame, and culpability, are all scalar properties or relations, that is, matters of more-or-less rather than either-or. The second issue discussed is whether deontological moral obligation is best described as a prohibition against using another as a means, or rather, as a prohibition on an agent strongly causing a prohibited result that was not about to happen anyway while intending to do so.     

Freedom to think – the value of multiple clinical narratives in women’s prisons†

Abstract

The merits of being multi-lingual are widely recognised. This paper considers the application of this metaphor to the conceptualisation of clinical work in a women’s prison. We suggest that sharing ‘languages’ from different theoretical orientations in open fora enables teams to build deep and nuanced understandings of clinical and systemic complexity, of particular value in secure settings. This discussion reflects the service model developed and used within HMP/YOI Holloway, a large women’s prison in London, which has recently been closed. We utilise a case example, with formulations and recommendations from several perspectives, to illustrate the value of maintaining a rich, inclusive discourse. We describe the benefits of such an approach to staff teams, to institutions and to those we serve, and consider the implications for organisation of services to maximise potential for change and recovery.     

Alexander and Anastayzia: the separation and search for family among Europe’s displaced

Abstract

In 1949, the child search branch of the International Tracing Service, set up after the war by the Red Cross and the Allies, began a search for the mother of a four year old boy, born to a forced labourer and left at a hospital in Rottenmunster at 8 months old. His file records first his abandonment, then his mother's strong resistance to external pressure to sign his adoption papers. His later attempts to trace his mother is also recorded. Taken together, the records shed light on the history of Nazi slave labour, lost children, forced adoptions, exile and the search for identity that connected episodes of displacement for many DPs that ended up in Australia. This article examines this history, and also considers the role of the archive as a powerful source for both enabling and disabling the search for family in the decades following the Second World War.     

Children’s and parents’ involvement in care order proceedings: a cross-national comparison of judicial decision-makers’ views and experiences

This paper presents the views of judicial decision-makers (n = 1794) in four child protection jurisdictions (England, Finland, Norway, and the USA (California)), about whether parents and children are provided with appropriate opportunities to participate in proceedings in their countries. Overall, the study found a high degree of agreement within and between the countries as regards the important conditions for parents’ and children´s involvement, although the four systems themselves are very different. There was less agreement about children’s involvement than parents’, and the court decision-makers from Norway and Finland were more likely to express doubts about this. Nevertheless, the main message from the judicial decision-makers is that they are relatively satisfied as to how parents’ and children´s involvement is handled in their countries. Whether or not this confidence is justified, the emphasis on achieving effective involvement of children and parents in court proceedings is likely to grow, with major implications for the workers, decision-makers and agencies involved.     

Post-Soviet Society and Russia’s Macroeconomic Statistics

This article investigates the causes of the distorted macroeconomic statistics in the Russian Federation. It introduces alternative methods for the estimation of gross domestic product (GDP) growth, and the growth and amount of fixed capital stock, and estimates them by drawing on alternative data. Our estimates for the period of 1992–2015 differ substantially from those reported by the Russian Federal State Statistics Service (Rosstat). According to our estimates, GDP declined by 10.2 percent, which is in sharp contrast with the official estimate reporting growth of 13.4 percent. The same is found with regard to labor productivity, for which we find a decline of 30.1 percent instead of a growth of 9.2 percent. Accordingly, the full book value of fixed capital stock shrunk by 29.2 percent instead of the officially reported 50.9 percent growth. The drop in the residual value of fixed capital is estimated at 52.6 percent. The ratio of replacement to book value of fixed capital fluctuated between 4:1 in the middle of the period and 7:1 toward the end of the period. Additionally, we estimate the amount of investment in human and physical capital necessary for producing 3 percent annual GDP growth. Financing such investment would require a decline in personal consumption by about a factor of 2, with a greater part of it falling on the better off population strata. Finally, we make suggestions regarding income redistribution.     

Everyday Stranger Harassment and Women’s Objectification

The present research suggests that stranger harassment (i.e., experiencing unwanted sexual attention from strangers in public) is a frequent experience for young adult women, and that it has negative implications for their well-being. First, stranger harassment was positively related to self-objectification (Fredrickson & Roberts, Psychol Women Quart 21:173–206 1997). This was true for women who coped with stranger harassment using common strategies (passive, self-blame, or benign), but not for women who used an uncommon, active coping strategy (e.g., confronting the harasser). Second, stranger harassment experiences and self-objectification were positively related to women’s fear of and perceived risk of rape. Further, women who feared rape were more likely to restrict their freedom of movement. In concert, the findings suggest that stranger harassment may have both direct and indirect negative effects on women’s lives, and that it is a phenomenon worthy of future research.