Rule-making, rule-breaking? Law breaking by government in the Netherlands and the United Kingdom

This article concerns a relatively novel issue: rule breaking and unlawful conduct by government bodies; to which degree does it occur, what is the nature of this misconduct, what are the underlying motives, and what are the consequences and possible solutions? Rule and law breaking is harmful for the credibility and integrity of a state and its law enforcement system. However, very little empirical research has been carried out into this issue, in comparison to research into state crime. There is little clarity about how public actors deal with criminal and administrative laws and rules in areas like environmental protection, safety regulations and working conditions. Do government bodies set a good example? Is their behaviour better or worse than the public and businesses? An analytical framework for research will be presented and also the results of an extensive research project in the Netherlands; the main themes of which have been benchmarked against data from the United Kingdom. The article will conclude with a summary of the main findings and a number of suggestions for further research and policy development.     

Assessing oral skills—time for reflection,time for risk

Abstract

THIS PAPER aims to establish a framework from which we can explain our dissatisfaction with defining what we teach and what and how we assess within legal education. To what extent can we, the professions or the public, have confidence that our assessment processes predict effective professional competence?

We will try to establish this framework by placing the discussion in the context of a workshop of assessment of oral skills run at the 2001 Bar Vocational Course conference. The workshop raised issues which we believe encapsulate the difficulties of measuring performance in such a way that it reliably predicts professional effectiveness. From this we will attempt to highlight the shortcomings of the current teaching, learning and assessment strategies more generally.

We go on to consider the role of student reflection in support of summative assessment: is it a reliable way of helping to plug the competence‐performance gap we have identified? What is its role in summative assessment? What demands does it make on tutor and learner? Since we cannot guarantee to find the best solutions first time, we make a plea for taking the risk of failure as well as success, and trying out ideas.     

Race and the decision making of juries

The relationship between race and jury decision making is a controversial topic that has received increased attention in recent years. While public and media discourse has focused on anecdotal evidence in the form of high‐profile cases, legal researchers have considered a wide range of empirical questions including: To what extent does the race of a defendant affect the verdict tendencies of juries? Is this influence of race comparable for jurors of different races? In what ways does a jury's racial composition affect its verdict and deliberations? The present review examines both experimental and archival investigations of these issues. Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes. This is a conclusion with important practical as well as theoretical implications when it comes to ongoing debates regarding jury representativeness, how to optimize jury performance, jury nullification and racial disparities in the administration of capital punishment.     

Value of DNA tests: a decision perspective

ABSTRACT: Before a Court of Law testifying in DNA‐evidence cases, scientists are often challenged with the idea that the more markers (loci) the better, i.e., why does the scientist not use 16 or more markers? This paper introduces a new perspective, decision analysis, to deal with the problem of the number of markers to type in a criminal context. The decision‐making process, which plays a key role in the routine work of a forensic scientist, consists of the rational choice, given personal objectives, between two or more possible outcomes when the consequences of the choice are uncertain. Simulated results support the hypothesis that analytical added value does not increase with the number of markers.     

The accountability of non-governmental actors in the digital sphere: A theoretical framework

The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non-arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere.     

法证科学领域的决策

随着法证DNA证据以及它所适用的概率模型日益凸显,反映了传统法证科学的局限性,并使人们对法证科学领域的决策产生了越来越多的质疑,焦点集中在对结论的解读方式和实际运用。分析表明,科学证据的本质不是绝对性或确定性的,而是概率性的;同时,事实审判者需要基于这些概率性的证据对事实作出明确的决定。因此,对于法证科学领域的决策,应当是专家在一系列归纳得出的特定假设基础上,就研究结果的概率进行恰当的报告,由事实审判者承担对概率作出决断的任务。     

Mobilizing Law in Latin America: An Evaluation of Black's Theory in Brazil

This research addresses two separate but related questions. First, to what extent are sociological theories proposed to explain legal behavior in Western societies applicable to non‐Western contexts? And second, to what degree is Black's theory of law generalizable, as he contends, “across time and space?” Our research merges these questions by exploring the applicability of Black's theory in a Latin American context. Data collected from a nationally representative survey in Brazil suggest support for Black's propositions regarding the impact of vertical, horizontal, cultural, and normative status on the likelihood of mobilizing the law, as well as the feasibility of using his framework for understanding legal behavior in non‐Western settings. Our discussion considers implications and directions for future analyses in both the Brazilian and cross‐cultural contexts.     

Executive Branch Socialization and Deference on the U.S. Supreme Court

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice‐votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model.     

Neuro-linguistic programming and the police: Worthwhile or not?

In the seventies Bandler and Grinder (1975, 1979; Grinder &; Bandler, 1976) developed their model of Neuro-Linguistic Programming (NLP). The aim of this model is to facilitate communication between persons (Particularly between counselors and clients). There is a growing body of literature on NLP; it is nowadays even used in a police context (Gray, 1991; Mayers, 1993; Rhoads &; Solomon, 1987). What does NLP mean? To what extent does empirical research support the NLP-model? And, to what extent is NLP useful for the police? This article addresses these three questions.     

Developing a theory of dynamic risk

ABSTRACT

The Propensities Model is now the dominant applied conceptualization of dynamic risk factors for sexual offending. In this paper five important limitations of this model are identified: it asserts causality but does not explain it; it does not represent human agency; it offers no account of what is involved in the development of propensities; it does not explain stable change in risk; and its account of the operation of static factors is a theoretical leap not supported by the evidence. A more elaborate theoretical framework is developed by integrating ideas from Ward's Good Lives model, Beck's account of schema modes, and Fishbein and Ajzen's Theory of Reasoned Action. This more elaborate framework incorporates the Propensities Model in a way that mitigates its limitations. Implications for research, assessment, and rehabilitation are explored.     

Proof of causation in informed consent cases: establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.     

Determinants of knowledge transfer: evidence from Canadian university researchers in natural sciences and engineering

This paper addresses three questions: First, what is the extent of research transfer in natural sciences and engineering among Canadian university researchers? Second, are there differences between various disciplines with regard to the extent of this transfer? And third, what are the determinants of research transfer? To answer these questions, the paper begins by differentiating between technology transfer and knowledge transfer. It then identifies the individual researcher as the unit of analysis of this study and introduces a conceptual framework derived from the resource-based approach of firms. The paper then reviews the literature on each of the factors included in the conceptual framework, beginning with the dependent variable, knowledge transfer. The conceptual framework includes four categories of resources and one category of research attributes that are likely to influence knowledge transfer. Based on a survey of 1,554 researchers funded by the Natural Sciences and Engineering Research Council of Canada (NSERC), comparisons of means of research transfer across research fields were conducted. Multivariate regression analyses were used to identify the determinants of research transfer by research field. The results of these analyses indicate that researchers transferred knowledge much more actively when no commercialization was involved than when there was commercialization of protected intellectual property. This paper thus adds to the relatively scarce evidence about knowledge transfer by examining knowledge transfer from a broader perspective than strict commercialization. The findings of this paper are also interesting for other reasons. We obtained statistical evidence indicating that researchers in certain research fields were much more active in knowledge transfer than those in other fields, thereby pointing to differences in levels of knowledge activities across research fields. Furthermore, we obtained evidence showing that only two determinants explained knowledge transfer in all the six research fields considered in this study, namely, focus of research projects on users’ needs, and linkages between researchers and research users. Statistical evidence obtained indicates that the other determinants that influence knowledge transfer vary from one research field to another, thus suggesting that different policies would be required to increase knowledge transfer in different research fields. The last part of the paper outlines the implications of the regression results for theory building, public policy and future research.     

Institutional change in the European Parliament: balancing legislative ethics and parliamentary independence

Research on legislative ethics has shown how scandals often trigger ethics reform; yet, the content of the reform often differs from that of the scandal. Why is this the case? And if scandals don't explain legislative ethics reform outcomes, then what does? If not this kind of external shock, then what factor(s) shape legislative reform outcomes? These questions provide the point of departure for a case study of the European Parliament's 2011 ethics reform. Drawing from the legislative ethics literature and from recent theories of institutional change, the article examines the impact of the scandal that initiated the reform, the interests and strategies of reform agents who wanted a quick reform process that would not undermine the EP's independence; and the institutional order in which those actors were embedded. It argues that an institutional logics perspective offers a convincing and comprehensive account of EP ethics reform, and suggests a new analytical framework that might be used by researchers in future research on legislative ethics.     

Say cheese! Privacy and facial recognition

The popular social networking site, Facebook, recently launched a facial recognition tool to help users tag photographs they uploaded to Facebook. This generated significant controversy, arising as much as anything, from the company’s failure to adequately inform users of this new service and to explain how the technology works.The incident illustrates the sensitivity of facial recognition technology and the potential conflict with data privacy laws. However, facial recognition has been around for some time and is used by businesses and public organisations for a variety of purposes – primarily in relation to law enforcement, border control, photo editing and social networking. There are also indications that the technology could be used by commercial entities for marketing purposes in the future.This article considers the technology, its practical applications and the manner in which European data protection laws regulate its use. In particular, how much control should we have over our own image? What uses of this technology are, and are not, acceptable? Ultimately, does European data protection law provide an adequate framework for this technology? Is it a framework which protects the privacy of individuals without unduly constraining the development of innovative and beneficial applications and business models?     

On The Outside Looking In: Reflections on the Role of Inspection in Driving Up Quality in the Criminal Justice System

This article examines the role of external inspection in enhancing the quality of a criminal justice system. It seeks to answer six foundational questions: how should we understand the nature and purposes of criminal justice inspection? what methodologies ought it to employ? who should do it? what values should it respect? how much does it cost? and does it ‘work'? The article reveals that the difference between inspection and other forms of scrutiny activity is largely a matter of emphasis; that the same is true of the difference between inspection and research; that ‘lay’ involvement in inspection can be beneficial; that independence is a core value for inspection, albeit one that is best understood as independence of judgement; that transparency is a further key value but not always honoured; and that evidence that inspection improves service delivery and hence justifies its costs is weak and further research is needed.     

Automatic forensic face recognition from digital images.

Digital image evidence is now widely available from criminal investigations and surveillance operations, often captured by security and surveillance CCTV. This has resulted in a growing demand from law enforcement agencies for automatic person-recognition based on image data. In forensic science, a fundamental requirement for such automatic face recognition is to evaluate the weight that can justifiably be attached to this recognition evidence in a scientific framework. This paper describes a pilot study carried out by the Forensic Science Service (UK) which explores the use of digital facial images in forensic investigation. For the purpose of the experiment a specific software package was chosen (Image Metrics Optasia). The paper does not describe the techniques used by the software to reach its decision of probabilistic matches to facial images, but accepts the output of the software as though it were a 'black box'. In this way, the paper lays a foundation for how face recognition systems can be compared in a forensic framework. The aim of the paper is to explore how reliably and under what conditions digital facial images can be presented in evidence.     

Punishing Cruelly: Punishment, Cruelty, and Mercy

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.     

Codes of professional conduct for Australian Defence Force military physicians: evenomating the serpent?

The scandal of health professionals' involvement in recent human rights abuses in United States military detention centres has prompted concern that Australian military physicians should be well protected against similar pressures to participate in harsh interrogations. A framework of military health ethics has been proposed. Would a code of professional conduct be a partial solution? This article examines the utility of professional codes: can they transform unethical behaviour or are they only of value to those who already behave ethically? How should such codes be designed, what support mechanisms should be in place and how should complaints be managed? A key recommendation is that codes of professional conduct should be accompanied by publicly transparent procedures for the investigation of serious infractions and appropriate disciplinary action when proven. The training of military physicians should also aim to develop a sound understanding of both humanitarian and human rights law. At present, both civil and military education of physicians generally lacks any component of human rights law. The Australian Defence Force (ADF) seems well placed to add codes of professional conduct to its existing ethical framework because of strong support at the highest executive levels.     

Some Meta-Theoretical Questions for Restorative Justice

Abstract. Unquestionably, Restorative Justice (hereafter RJ) has finally gathered some real momentum. It has become a sine qua non topic in many national and international policy and statutory agendas. However, as the restorative practice expands to deal with crimes, ages and situations it has never addressed before (at least in its contemporary version), and as its application starts to make sense not only to national but also to regional and international bodies and fora, new theoretical problems are posed. In the fast‐growing literature many theories and Schools have been evoked to support RJ's claims. This paper will take the discussion a step back by looking at questions of meta‐theoretical character. In particular, the paper will ask: Does RJ have a place in the “world of theories,” and if it does, then what kind of theory is it, and on what level should it be placed? Second, does RJ theory need a philosophy, and why? Finally, how can restorative practices be morally justified?