What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.     

“Murder–Suicide” or “Murder–Accident”? Difficulties with the Analysis of Cases

Abstract: Homicide where a perpetrator is found dead adjacent to the victim usually represents murder–suicide. Two incidents are reported to demonstrate characteristic features in one, and alternative features in the other, that indicate differences in the manner of death. (i) A 37‐year‐old mother was found dead in a burnt out house with her two young sons in an adjacent bedroom. Deaths were due to incineration and inhalation of products of combustion. (ii) A 39‐year‐old woman was found stabbed to death in a burnt out house with her 39‐year‐old de facto partner deceased from the combined effects of incineration and inhalation of products of combustion. The first incident represented a typical murder–suicide, however, in the second incident, the perpetrator had tried to escape through a window and had then sought refuge in a bathroom under a running shower. Murder–accident rather than murder–suicide may therefore be a more accurate designation for such cases.     

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.     

Pressured into a Preference to Leave? A Study on the “Specific” Deterrent Effects and Perceived Legitimacy of Immigration Detention

Immigration detention is formally not a punishment, but governments do use it to deter illegal residence. This study examines whether and how immigration detention affects detainees’ decision‐making processes regarding departure, thereby possibly resulting in de facto “specific deterrence.” Semistructured face‐to‐face interviews were conducted in the Netherlands with 81 immigration detainees, and their case files were examined. Evidence is found for a limited, selective deterrence effect at the level of detainee's attitudes: most respondents considered immigration detention a painful and distressing experience, but only a minority—mostly labor migrants without family ties in the Netherlands—developed a preference to return to their country of citizenship in hopes of ending their exposure, including repeated exposure, to the detention. In line with defiance theory, we find that eventual deterrent effects mostly occurred among detainees who also attributed some measure of legitimacy to their detention. Among some detainees, the detention experience resulted in a preference to migrate to a neighboring European country.     

The Spokesman Conundrum: “Is It Good for the Jews?”

Woest, Victoria Saker. 2012 . Henry Ford's War on the Jews and the Legal Battle Against Hate Speech . Battles concerning who legitimately speaks for minority groups pervade US history. The historically decentralized organization of American Jewry affords a prime example of this key leadership dilemma. Competing approaches to how to deal with Henry Ford's virulent anti‐Semitism and extensive hate speech in the 1920s underscore the familiar, yet seldom carefully analyzed, tension between confrontation and negotiation that is often faced by outside groups and their spokesmen who seek change, wish to defend themselves, and/or hope for increased inclusion.     

Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?

Do legal elites—lawyers admitted to federal appellate bars—perceive the Supreme Court as a “political” institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near‐universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in “global delegitimization” of the institution itself.     

“Tort Tales” and TV Judges: Amplifying,Modifying, or Countering the Antitort Narrative?

This article joins the debate about the popular pervasiveness of antitort and antilitigation attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered by reality‐based television judge shows. Given the persistent debate about tort reform and scholars' recognition of the role played in this debate by simplified narratives about the legal system, we analyze whether reality‐based TV judge shows as a genre contribute to the creation and dissemination antitort and antilitigation sentiment. Earlier studies led us to hypothesize that TV judge shows would largely support the antitort and antilitigation narratives. After coding over 55 hours of such shows, however, we conclude that they do not adopt this narrative. Rather, these shows present a view of the civil law system that largely treats plaintiffs' claims as legitimate and showcases the majority of defendants as wrongdoers. In spite of this, we argue that the particular dramatic qualities of TV judge shows limit their potential to serve as a strong counternarrative to antitort and antilitigation stories.     

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”

For more than twenty‐five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal‐historical analysis of the resultant stress on the contingency and complexity of social life.     

National Academy of Sciences “Standardization”: On What Terms?

The frequently cited 2009 National Academy of Sciences Report entitled “Strengthening Forensic Science in the United States: A Path Forward” has become a focal point of forensic science practitioners' discussions and research since its publication. One of its recommendations is “Standardized Terminology and Reporting”. Little has been published to date on this topic, although conversations and dialogs on the subject are ongoing. The upshot of this communication is to draw attention to the problem of one term in particular, perimortem, which may be only the proverbial “tip of the iceberg” in the lexicon‐related concerns of forensic scientists. Even if it is an isolated issue, it is one that reflects the need for a consensus on term use and definitions by interdisciplinary practitioners who are currently using the term haphazardly, to the confusion of colleagues and potentially finders‐of‐fact in the courts.     

How “Standardized” is Standardized? A Validation of Postcranial Landmark Locations

Since the mid‐1990s, osteometrics have been a major aspect in forensic anthropology. However, recent evidence has shown that practitioners have been using differing points to establish certain measurements; namely those involving the clavicle, scapula, ulna, femur, and tibia. Engaging 61 practitioners, this study examined and confirmed how extensive this discord is. The highest consistency rate among practitioners was the scapular breadth (62.3%), followed by the femoral anteroposterior subtrochanteric diameter (55%). All other levels fell below these, particularly the physiological length of the ulna which was the most inconsistently measured bone. Furthermore, these low consistency rates yielded percent mean differences between two and 20% of the measurement length, with ranges averaging 14 mm. In light of these results, it is recommended that the field take steps to improve the standardization of such problematic measurements, including reexamining all measurements currently listed in osteometric texts, reassessing the utility of each, and reissuing a comprehensive guide.     

What “Regulatory State”? Explaining the Stability of Public Spending and Redistribution Functions after Regulatory Reforms of Electricity and Rail Services in the United Kingdom and Germany

In Europe, the rise of the regulatory state was accompanied by a broad diffusion of research on the processes of privatisation, liberalisation, and reregulation of utilities, previously managed directly by the state. This article offers an empirical and theoretical discussion of the paradigm of the regulatory state. It proposes to evaluate the transformation of the actual functions of the welfare state in a context of reforms of network industries over the last twenty years. Relying on cases from the electricity and railways sectors, it studies the changing balance between the traditional functions of the welfare state and the new regulatory functions introduced by the reforms. This article explains how, alongside the strengthening of regulatory functions, states maintained and developed powerful redistribution functions. The emerging regulatory state is not substituted for the positive/welfare state, but partly juxtaposed with it, making the structures for governing these sectors much less easy to read.     

Charging children with child pornography – Using the legal system to handle the problem of “sexting”

No one would disagree that the purposes and aims of child pornography laws are legitimate and necessary. Recently, however, these laws, which have the ostensible aim of protecting children, are instead being used to punish children and dissuade the new phenomenon of “sexting” in the United States. “Sexting” refers to the use of mobile phones with built-in cameras to produce and distribute images of oneself in a sexually provocative or revealing position. The potential danger that this trend poses to minors is huge. Photographs produced by the use of “sexting” can be distributed to unintended third parties, often leading to embarrassment and harassment. Moreover, senders are also in danger of being charged with possession and distribution of child pornography, regardless of the fact that they are minors and the pictures are often of themselves. Not only is charging minors with child pornography a rather new phenomenon, it also appears to be a strategy that several states are adopting. This paper will look at the growing trend of charging minors who engage in “sexting” with child pornography charges by a case study of an actual prosecution, what the consequences of such a conviction entails in the United States, legislative responses, and an analysis of the appropriateness of using the legal system as a way of dealing with this problem.     

A Disruptive Influence? “Prevent‐ing” Problems and Countering Violent Extremism Policy in Practice

This article describes how disrupting the activities of suspected violent extremists has become an increasingly significant construct in the policy and practice of the Prevent strand of UK Counter‐Terrorism. Informed by empirical data collected during semi‐structured interviews with police officers involved in conducting disruptions and members of the communities where these occurred, blended with a limited amount of field observation, the analysis documents how and why a logic of disruption has assumed increasing prominence in counter terrorism work. In respect of police interventions in particular, implementing disruptions, rather than pursuing fully‐fledged prosecutions, represents a pragmatic way of reconciling increasing demand with limited resources, as well as managing some of the difficulties of translating intelligence into legal evidence. Conceptualized in this way, the analysis positions disruption as a distinctive mode of crime prevention; one premised upon logics of near‐event interdiction. As such, it is understood as rather different in its operations and functions to other forms of “early intervention” that are increasingly prominent in much contemporary crime prevention policy. By focusing upon how specific Prevent interventions are implemented and performed this analysis makes a particular contribution to our knowledge of counter terrorism work. This reflects the fact that most previous studies of Prevent and other countering violent extremism programs have provided analyses of community perceptions and reactions to policing and the policy frame, rather than the configuration of the interventions themselves.