The Social Dilemma of European Integration

This essay examines the problems that many scholars raise when referring to the EU’s chances of implementing a true, original and effective social model, capable of renewing the Welfare State model developed after the Second World War. The analysis is conducted in the light of the process of ‘constitutionalisation’ in the European Union and of the Lisbon Treaty. Following a constructive approach, the author examines the current debate among European public actors on this issue, with particular emphasis on the ‘advanced enforcement’ of the Nice Bill of Rights evident in the jurisprudence of the European Courts as well as in recently published European Commission documents on ‘flexicurity’.

The effects of stronger intellectual property rights on technology transfer: evidence from Japanese firm-level data

This paper presents the theoretical framework and empirical analysis of the effect of stronger Intellectual Property Rights (IPRs) on technology transfer from parent firm to its subsidiaries in foreign countries. The results of empirical testing, based on the firm-level panel data of Japanese MNCs’ foreign subsidiaries, show that the stronger protection of IPRs has a positive effect on the promotion of intra-firm technology transfer after controlling for market specific factors in the host countries as well as parent-subsidiary firm specific factors. They are consistent with our theoretical prediction and the results of the previous studies based on US firm-level data.

A New Alliance of De-legalisation and Legal Formalism? Reflections on Responses to the Social Deficit of the European Integration Project<Superscript>⋆</Superscript>

This paper will cover a wide range of issues. It will start with a reconstruction of the European Community’s ‘social deficit’, arguing that a credible response to this deficit would be a pre-condition for the democratic legitimacy of the deepened integration project. Such a response can be developed in a re-conceptualisation of European law as a new type of supranational/trans-statal conflict of laws – this is the thesis defended in the second section. This vision is contrasted in the third section, first with the steps towards Social Europe envisaged in the Draft Constitutional Treaty, and then with the messages of the recent judgments of the European Court of Justice (ECJ) in Viking and Laval. It goes without saying that the theoretical premises of the argument, let alone its many interdisciplinary dimensions and empirical background, can often only be signalled, but not developed systematically.

Inhuman and Degrading Punishment,Dignity, and the Limits of Retribution

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom provides a much needed clarification of the parameters of the prohibition on inhuman and degrading punishment under Article 3 of the European Convention on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory life sentences – essentially, life imprisonment without parole. The Grand Chamber's judgment refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This article considers the judgment's profound significance in relation to both human rights and penology.     

Trade marks are 'possessions', as are applications

In a landmark judgment, the Grand Chamber of the European Courtof Human Rights (ECHR) partially reversed an earlier decisionof the Second Section of that Court of October 2005 and extendedthe protection of fundamental property rights under Article1 of Protocol No. 1 of the European Convention on Human Rightsto trade mark applications.     

European criminal law and European identity

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

Singing the same tune? International continuities and discontinuities in how police talk about using force

This article focuses on a research project conducted in six jurisdictions: England, The Netherlands, Germany, Australia, Venezuela, and Brazil. These societies are very different ethnically, socially, politically, economically, historically and have wildly different levels of crime. Their policing arrangements also differ significantly: how they are organised; how their officers are equipped and trained; what routine operating procedures they employ; whether they are armed; and much else besides. Most relevant for this research, they represent policing systems with wildly different levels of police shootings, Police in the two Latin American countries represented here have a justified reputation for the frequency with which they shoot people, whereas at the other extreme the police in England do not routinely carry firearms and rarely shoot anyone. To probe whether these differences are reflected in the way that officers talk about the use of force, police officers in these different jurisdictions were invited to discuss in focus groups a scenario in which police are thwarted in their attempt to arrest two youths (one of whom is a known local criminal) by the youths driving off with the police in pursuit, and concludes with the youths crashing their car and escaping in apparent possession of a gun, It might be expected that focus groups would prove starkly different, and indeed they were, but not in the way that might be expected. There was little difference in affirmation of normative and legal standards regarding the use of force. It was in how officers in different jurisdictions envisaged the circumstances in which the scenario took place that led Latin American officers to anticipate that they would shoot the suspects, whereas officers in the other jurisdictions had little expectation that they would open fire in the conditions as they imagined them to be.

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Researching the use of force: the background to the international project

This article provides the background to an international project on use of force by the police that was carried out in seven countries. Force is often considered to be the defining characteristic of policing and much research has been conducted on the determinants, prevalence and control of the use of force, particularly in the United States. However, little work has looked at police officers’ own views on the use of force, in particular the way in which they justify it. Using a hypothetical encounter developed for this project, researchers in each country conducted focus groups with police officers in which they were encouraged to talk about the use of force. The results show interesting similarities and differences across countries and demonstrate the value of using this kind of research focus and methodology.

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Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later

The U.S. Supreme Court’s ruling concerning suggestive eyewitness identification procedures (Manson v. Braithwaite, 1977, 432 U.S. 98) has not been revisited by the Court in the intervening 30+ years. Meanwhile, scientific studies of eyewitnesses have progressed and DNA exonerations show that mistaken identification is the primary cause of convictions of the innocent. We analyzed the two-inquiry logic in Manson in light of eyewitness science. Several problems are discussed. Ironically, we note that suggestive identification procedures (determined in the first inquiry) boost the eyewitnesses’ standing on three of the five criteria (used in the second inquiry) that are used to decide whether the suggestive procedures were a problem. The net effect undermines safeguards intended by the Court and destroys incentives to avoid suggestive procedures.

The price of non-compliance with the Kyoto Protocol: The remarkable case of Norway

One of the ways to induce compliance is for an international enforcement mechanism to authorize the use of punitive consequences against a non-compliant country. However, such consequences should not cause significant damage to other (compliant) countries. The compliance mechanism of the Kyoto Protocol fails to meet this requirement. The Enforcement Branch of the Compliance Committee is instructed to impose punitive consequences on a non-compliant country that will have considerable adverse welfare effects for compliant countries as well. Using a numerical model, we show that in the case of Norway, the welfare effects can actually be worse if another country is punished than if Norway itself is punished.

Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute

The parameters of legal structures within which perpetrators of most serious international crimes are surrendered to the ICC and the legal frameworks within which the rights of such individuals are best protected are not sufficiently precise in international law. By examining both international and some national jurisprudence with regard to mala captus bene detentus practice, the reach of the right to challenge the legality of one’s arrest is evaluated with a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.

Justice Under Global Capitalism?

Under conditions of polycentric globalisation, a positive concept of justice is definitively impossible. Justice is aimed at removing unjust situations, not creating just ones. The justice of fundamental rights coerces expansive social systems into self-restriction. Human rights in particular take the role of counter-principles to communicative violations of body and soul, a protest against inhumanities of communication, without it ever being possible to say positively what the conditions of humanly just communication might be. The article analyses some consequences of this view for social counter-movements and counter-institutions.

Criminal victimization in contemporary China: a review of the evidence and challenges for future research

The rapid economic growth in China over recent decades has been accompanied by higher levels of crime, but there have been few studies of the Chinese experience of criminal victimization. A recent victimization survey of a representative sample of households in Tianjin represents a major effort to fill this gap in the literature. The present paper reviews the research based on the Tianjin survey along with other studies of crime and criminal victimization in China that have been published since 1990. We summarize the major findings, discuss the theoretical perspectives and methodological strategies that have been applied, identify the limitations of the research to date, and offer suggestions for future research.

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Deregulation,property rights,and legal system

During regulation the regulator carries out an intermediary role between shareholders and managers, consequently affecting property rights and the agency relation between the two. Deregulation implies that this intermediary role ceases to exist. This article analyses how government deregulation changes property rights, differentiating between firms of network and non-network structures. Changes in property rights affect the agency relation between shareholders and managers, increasing information asymmetry and agency costs. I argue that the way to reduce agency costs depend to a great extent on the country’s legal system classified as of common or civil law tradition.

E-Mail Communication and Group Cooperation in Mixed Motive Contexts

Two empirical studies are presented that explore how and why e-mail communication (versus face-to-face communication) influences cooperation in mixed motive group contexts. Results indicate that, relative to those engaging in face-to-face interaction, those who interacted via e-mail were (1) less cooperative and (2) felt more justified in being noncooperative. Feelings of justification mediated the relationship between communication media and the decision to cooperate or not.

To Discipline and Publish: Scottsboro and Narratives of Delinquency

With the economics of racism of the 1930s and 1950s American South in mind, our essay explores the relationship between the act of writing and institutional penology. Taking an obscure, but visceral autobiographical account by Paterson and Conrad (Scottsboro Boy, Garden City Doubleday, 1950), we examine how discipline, punishment, and institutional identity emerge out of publishing, or, as Foucault put it, “the power of writing.” Narratives of delinquency born out of a racialized penal economy tend to resist attempts to tame the criminal, making institutional survival a productive discourse, and its articulation, a unique revolutionary act.

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Measuring corporate environmental crime rates: progress and problems

The problem of corporate crime rates has been the subject of debate, speculation and operationalization for decades, largely stemming from the complexity of measuring this type of crime. Examining corporate environmental crime poses challenges and creates opportunities for advancing the discussion of corporate crime rates, but criminologists are less familiar with environmental data. In the current paper, we review the strengths and weaknesses of existing environmental data that can be used to construct the components of an environmental crime rate. We also present a corporate environmental crime rate derived from data on violations of the Clean Water Act and describe problems with using it in real world data. Implications for theory, practice and future research are discussed.

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Hommage à Gérard Cornu

Sans résumé

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Thinking Critically About Rural Gender Relations: Toward a Rural Masculinity Crisis/Male Peer Support Model of Separation/Divorce Sexual Assault

After decades of neglect, a growing number of scholars have turned their attention to issues of crime and criminal justice in the rural context. Despite this improvement, rural crime research is underdeveloped theoretically, and is little informed by critical criminological perspectives. In this article, we introduce the broad tenets of a multi-level theory that links social and economic change to the reinforcement of rural patriarchy and male peer support, and in turn, how they are linked to separation/divorce sexual assault. We begin by addressing a series of misconceptions about what is rural, rural homogeneity and commonly held presumptions about the relationship of rurality, collective efficacy (and related concepts) and crime. We conclude by recommending more focused research, both qualitative and quantitative, to uncover specific link between the rural transformation and violence against women. This paper was presented at the 2006 annual meeting of the American Society of Criminology, Los Angeles, California. Some of the research reported here was supported by National Institute of Justice Grant 2002-WG-BX-0004 and financial assistance provided by the College of Arts and Sciences and the Office of the Vice President for Research at Ohio University. Arguments and findings included in this article are those of the authors and do not represent the official position of the US Department of Justice or Ohio University. Please send all correspondence to Walter S. DeKeseredy, e-mail: walter.dekeseredy@uoit.ca. All of the names of the women who participated in DeKeseredy and colleagues’ rural Ohio study and who are quoted have been changed to maintain confidentiality.

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