Rorschach Tests,Pluralism, and Hopes for the Future: A Response to the Responses

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.     

SOCIAL CLASS AND DELINQUENT BEHAVIOR

The apparent refutation by self-report studies of social class-related theories of juvenile delinquency is critically reviewed. Improper conceptualization and operationalization of “social class” are considered to be primary causes of inconsistent findings. A more appropriate “underclasslearning class” model of stratification is suggested. Although no empirical support is found for a relationship between self-reported delinquent behavior and socioeconomic status of father's occupation. indications are that social class is somewhat more related to self-reported delinquency using the underclass/earning class model. However, there is no reason to expect social class to emerge as a major correlate of delinquent behavior no matter how it is measured.     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

Continuing education: Toward a life-course perspective on social learning

Sutherland's differential association theory and the life-course perspective have at times been conceptualized as contrasting theories of criminal behavior. I argue instead that our understanding of delinquency, the dynamics underlying criminal persistence and desistance, and intergenerational patterns will be enhanced by a more explicit integration of these two traditions. I focus on family processes as these are foundational intimate relationships that remain underappreciated as a source of lifelong learning and influence. Although family support and variations in parental supervision have been amply investigated, “direct transmission” takes place within the family as well as within the confines of the more heavily studied world of adolescent peer groups. I identify five dimensions of direct transmission and illustrate these dynamic processes with qualitative data from two longitudinal studies and results of recent quantitative analyses. The analysis is generally in line with Sutherland's original formulation but includes several extensions and modifications. It is important to include a role for human agency, and for “noncriminal” definitions and lifestyle factors, in addition to the directly criminogenic definitions Sutherland and subsequent researchers have emphasized. The focus on social processes is, however, consistent with Sutherland's goal of highlighting limitations of psychological and biological differences explanations.     

Machiavelli and the Problem of Dictatorship

Machiavelli is the first modern political thinker who pays great attention to the magistracy of dictatorship. “Dictatorial authority,” as he puts it, is fundamental to the survival and prosperity of republics: It is the magistracy, the “ordinary mode,” to which they turn to deal with “extraordinary accidents,” political and military emergencies. Machiavelli's gaze is cast both on the Ancient and the Modern world: Although he concentrates on the Roman magistracy, he also pays attention to magistracies of the modern world that were in some way similar, such as the Council of the Ten in the Republic of Venice. In my paper, I will attempt to reconstruct the essential points of Machiavelli's discussion on dictatorship; in the concluding remarks, I will briefly tackle the more general question of the relationship between politics and law in his work as a whole.     

The Ethics of Corporate Legal Strategy: A Response to Professor Mayer

In this issue of the American Business Law Journal, Professor Don Mayer continues an important conversation regarding the ethics of corporate legal strategy. 1 Addressing several of my published works, Mayer offers two primary criticisms: (1) the works are too sanguine with regard to the appropriate scope of the strategic decision to “breach‐and‐pay,” and (2) the works offer too little guidance for the well‐intentioned corporate executive. In this response, I briefly restate my views, address Mayer's two criticisms, and offer concluding remarks.     

青少年犯罪原因解析及其预防

青少年犯罪是中国乃至世界所关注的一个社会问题,因为它不仅关乎一个社会的稳定与安宁,更关系到一个国家的未来。现阶段,青少年犯罪还处于上升趋势,并且还呈现出新的特点．我们必须在分析现阶段青少年犯罪原因和特点的基础上提出针对性的措施,建立有效的青少年犯罪的防控机制,来预防和控制青少年犯罪现象的发生。     

TESTING CONTROL THEORY AND DIFFERENTIAL ASSOCIATION: A REANALYSIS OF THE RICHMOND YOUTH PROJECT DATA*

In what has become a classic work in the field, Matsueda (1982) tested control theory against differential association theory using Hirschi's (1969) Richmond Youth Project data. Matsueda found that measures of “definitions favorable to law violation” entirely mediated the effect of his social control measures and friends' delinquency, and concluded that differential association theory was supported over control theory. We note several problems with Matsueda's specification of control theory, and we reanalyze the Richmond data including measures of commitment to conventional goals and several attachment to parents variables that Matsueda excluded. We also propose and test a new method of measuring the social bond, conceptualizing the social bond as a second-order latent construct. In contrast with Matsueda's findings, we find that the social bond and friends' delinquency retain important direct effects on delinquency, and that these effects are greater than those of definitions. Thus, our results are more supportive of control theory than differential association theory.     

The Youth Crime Problems in the Republic of Korea

The Republic of Korea, ironically known as “the Land of the Morning Calm,” has experienced drastic social changes during the past half century.1 Most experts agree that the catalyst for this change has been the country's remarkably swift modernization and urbanization, as Korean society has shifted away from its past agrarian traditions. What has resulted are major conflicts between its culture's traditional values and new values imported from social structures of the industrialized western nations. These conflicts as they relate to juvenile delinquency are the subject of this article.     

Framing Henry Ford's War: Representation,Speech, and the New Civil Rights History

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. In this essay, I respond to three readers of my book, Henry Ford's War and the Legal Battle Against Hate Speech, by embracing the opportunity to reconsider the book's theoretical and historiographical frames. I synthesize the contributions that Clyde Spillenger, Carroll Seron, and Aviam Soifer make in their deep readings of the book and respond to their criticisms. I then place the book into a new interpretive frame that is emerging in the field of the “new civil rights history,” as it is now being conceptualized in the work of Risa Goluboff, Kenneth Mack, Tomiko Brown‐Nagin, and others writing on civil rights advocacy in the twentieth‐century United States.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Saved By the Bell: Reclaiming Home Court Advantage for At‐Risk Youth Funneled into the School‐to‐Prison Pipeline

Far too often, minority students are faced with punitive disciplinary actions and are consequently directed to the “school‐to‐prison” pipeline. From education to discipline, implementation of policies that criminalize minor delinquent behavior pushes these students out of school and into the juvenile justice system. Traditional disciplinary actions that would land students in the principal's office have gradually transformed to students being handcuffed and thrown in jail. This Note proposes a model statute requiring states with a high criminal delinquency rate to implement school‐based youth courts in public high schools.     

Gault's Promise Revisited: The Search For Due Process

Fifty years ago, due process was introduced into the juvenile courts, but today children still do not have the guiding hand of counsel at every stage of the proceedings. In assessing the pre‐Gault world, Chief Justice Fortas observed that “[a] child receives the worst of both worlds:…he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 1 Fortas opined that “Then as now good will and compassion were admirably prevalent. But recent studies have entered with surprising unanimity, sharp dissent to the vitality of this gentle conception. They suggest that the appearance as well as the actuality of fairness‐ impartiality and orderliness‐ in short the essentials of due process may be a more therapeutic attitude so far as the juvenile is concerned.” 2 The prescience of his observation has found resonance and reinforcement with the 2013 publication of Reforming Juvenile Justice: A Developmental Approach 3 which was commissioned by the Office of Juvenile Justice Delinquency and Prevention (OJJDP). Reforming Juvenile Justice's emphasis on encouraging not only the perception but the actuality of fairness in all domains 4 connects directly to the essence of Gault's message. “Treating youth fairly and ensuring that they perceive that have been treated fairly and with dignity contribute to positive outcomes in the normal processes of social learning, moral development, and legal socialization adolescence.” 5 The research also demonstrates that public health oriented alternatives to traditional court processing promote social connection and positive youth development. 6 The OJJDP report provides a road map for promoting positive youth development and social engagement by demonstrating that supporting such policies improves public safety outcomes by reducing recidivism. In exploring whether Gault's promise of due process has been realized or is still aspirational, this article suggests that our inquiry requires us to think contextually by considering how children and families are treated in and out of the courtroom. This entails consideration of educational, child welfare and mental health services, as well as the scope of legal entitlements. Equity and fundamental fairness, euphemisms for due process, are what will truly effectuate Gault's promise and should be the benchmark for all courts and systems that engage with children.     

Bicameral Winning Coalitions and Equilibrium Federal Legislatures

I analyze the legislative interaction between representatives from big and small states in a bicameral legislature that decides on the allocation of a fixed resource among the states. I assume that the two houses are malapportioned and that the big states are underrepresented in the upper house. By studying the effect of this and other institutional features on the relative welfare of big and small states and on equilibrium coalitions, I find that, contrary to common belief, an increase in the representation of small states may reduce those states' expected payoff, ceteris paribus. Also, contrary to interpretations of minimum‐winning‐coalition theorems, I demonstrate that excess majorities may occur in one of the two houses. When proposal making tends to be dominated by big (small) states, excess majorities occur in the upper (lower) house. I also find that higher proposal power increases the payoff of a group of states. Changes in the majority requirements in the two houses and expansion to encompass more small (big) states have non‐monotonic effects on the relative welfare of the two groups. I conclude my analysis with an empirical application using calibrations results for the 103d U.S. Congress and the legislative institutions of the European Union before and after the Treaty of Nice. “The equality of representation in the senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion.” James Madison (1788) Time: “Did the battle over the relative weight of big and small countries overshadow more important matters at Nice?” Verhofstadt: “It was absolutely necessary. What they tried to do in Nice was make a directorate of the big countries. The European Union can't survive like that.” Interview of Guy Verhofstadt, Prime Minister of Belgium TIME (2000)     

The politics of race and juvenile justice: The “due process revolution” and the conservative reaction

Through the prism of race, this article analyzes the social structural and political context of juvenile justice law reforms over the past half century. Throughout the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on recalcitrant southern states that still adhered to a segregated Jim Crow legal regime, and these norms provided the impetus for the Supreme Court's juvenile court “due process” decisions in the 1960s. The article then analyzes sociological, criminological, racial factors, media coverage, and political dynamics of the 1970s and 1980s that contributed to the “get tough” legislative reformulation of juvenile justice policies in the 1990s. During this period, conservative Republican politicians pursued a “southern strategy,” used crime as a code word for race for electoral advantage, and advocated “get tough” policies, which led to punitive changes in juvenile justice laws and practices and have had a disproportionate impact on racial minorities.     

A Practical Approach to Evaluating and Improving Juvenile Justice Programs

For more than a decade, the juvenile justice field in the United States has been dominated by the seventh “moral panic” over juvenile delinquency. This panic led to an overreaction to juvenile delinquency by legislators and juvenile justice officials. The main consequence is a “crisis of overload” in many state and local juvenile justice systems across the country. Tools are available to help juvenile courts effectively manage the overload of court clients. Most important, a new method has been developed for evaluating existing programs against research‐based standards that have been synthesized from juvenile justice program evaluations. This tool enables states and localities to take a practical approach to improving juvenile justice system programs.     

Pathways from Traumatic Child Victimization to Delinquency: Implications for Juvenile and Permanency Court Proceedings and Decisions

Research studies and observations by mental health and judicial professionals suggest that childhood traumatic victimization may contribute to the development of juvenile delinquency. Based on this evidence, we describe a chronological pathway that runs from: (a) early childhood victimization, to (b) escalating dysregulation of emotion and social information processing (“survival coping,” which takes the form of depression, anxiety, social isolation, peer rejection, and conflicted relationships), to (c) severe and persistent problems with oppositional‐defiance and overt or covert aggression compounded by post‐traumatic reactivity and hypervigilance (“victim coping”). A case vignette is provided, and implications for judicial review and decisions are discussed.     

The Evolution of Balanced and Restorative Justice

Maloney, Armstrong, and Romig presented a portrait of “Joey,” who was the exemplar of what was wrong with the juvenile justice system, in 1988 when they published The Balanced Approach in this Journal. In response, they reimagined a juvenile justice system predicated on balancing three fundamental goals—protection of community, accountability to victims, and development of competencies to prepare juvenile court‐involved youth for productive roles in their communities. The authors examine the evolution of balanced and restorative justice and re‐imagine how Joey's life may have been different at critical junctures of his juvenile court involvement.