Introduction to Symposium on Keith J. Bybee's All Judges Are Political—Except When They Are Not

This introduction to the symposium on Keith J. Bybee's All Judges Are Political—Except When They Are Not provides a brief synopsis of the book's main argument and identifies some of the unsettled questions generated by the author's innovative treatment of courtesy, hypocrisy, and law.     

All Judges Are Political—Except When They Are Not: A Response

The author explains the origins of All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (2010) as a response to a fundamental question posed by legal realism: How can the judicial process be permeated with politics and yet remain an accepted part of a legitimate legal system? The author demonstrates the ongoing importance of this question by examining debates over the place of constitutional law in the law school curriculum and by assessing public perceptions of the Supreme Court's ruling on health care reform. The author then addresses the critical appraisals presented by the symposium contributors. The critiques are taken as road maps for extending the author's arguments in new directions.     

Principles,Passions, and the Paradox of Modern Law: A Comment on Bybee

In All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law ( 2010 ), Keith Bybee considers the hypocrisy of modern law—that is, the widespread view that judges are both principled and partisan—by drawing an analogy with courtesy. Both law and courtesy contain and manage the diverse and potentially divisive interests that would, were they not contained, disrupt social life. In this essay I extend this argument by considering whether the relationship between law and courtesy is more than merely analogical. I suggest that both systems are aspects of larger historical developments out of which emerged the modern subject and the modern state, creating a social world made up of apparently bounded individuals and institutions. As such, law and courtesy do more than conceal and contain interests and subjectivity; they produce the unruly, partisan subjects they are designed to manage.     

Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems

This essay critically examines Keith Bybee's All Judges Are Political, Except When They Are Not. Although Bybee's creative use of the cultural form of courtesy helps us better understand the consensus‐building and legitimating features of rule‐of‐law systems, it overlooks the role that rude dissent can play in exposing the violent, exclusionary, and materially disadvantaging aspects of such systems. Using examples of outing closeted public figures and the rude AIDS activism of the 1990s, this essay explores the rule of law from the perspective of those who are subject to it.     

Judging a Judge: A Reappraisal of Lord Mansfield and Somerset’s Case

This article presents an occasion on which moral judgement can, and should, take place. When the chief justice of the court of king’s bench – William Murray, first earl of Mansfield – was presented with the case of Somerset v Stewart in 1772, he was presented with choices that unveiled aspects of his character. By first establishing the ambiguity of the legal context and the multifarious political pressures that preceded Somerset’s case, this article identifies the extent of Lord Mansfield’s ‘room for manoeuvre’ with respect to three elements of his conduct: the delay and reluctance in making a decision, the choices regarding the substantive decision and the manner of expressing that decision. To what extent did Mansfield have freedom of action, and how did he exercise it? Are those free actions worthy of praise or condemnation? Through an essential questioning of previous historians’ assumptions and omissions, this article sharpens the strokes through which a complex portrait of Mansfield may be rendered.     

PERCEPTIONS OF THE WORK ENVIRONMENT AMONG CORRECTIONAL OFFICERS: DO RACE AND SEX MATTER?*

This article examines the relationship between race and sex and perceptions of the work environment among correctional officers. It addresses four central questions: (1) Are there race and sex differences among correctional officers in their perceptions of the work environment? (2) Do characteristics of the job and the institutions in which officers work account for these differences? (3) Do these differences attenuate over time? (4) Are there factors that mediate the relationship between race and sex and perceptions of the work environment? These issues are explored using data drawn from the correctional officer sub-sample (N= 2,979) of the 1992 administration of the Prison Social Climate Survey. Findings indicate that race and sex do play a role in shaping officers’ perceptions of the work environment, that these differences between groups are not completely accounted for by job or institutional characteristics and do not attenuate over time, and that there are factors that mediate the relationship between race and sex and workplace perceptions. Among minority male officers, greater efficacy in working with inmates appears to be an important factor in creating lower levels of job stress, while white female officers’ higher levels of overall job satisfaction are accounted for largely by a more positive evaluation of the quality of supervision.     

Beyond the Goods/Resources Dichotomy: Animal Labor and Trade Law

Abstract

Since its inception, the World Trade Organization (WTO) has, in a rather self-evident manner, treated animals as objects of trade: Animals must be either goods or natural resources subject to the terms and conditions of the General Agreement on Tariffs and Trade (GATT). However, broader public and legal efforts to recategorize animals from goods to “sentient beings,” which are emerging across the world, are casting serious doubt on these assumptions. Using animals’ subjectivity as a starting point, a new and bourgeoning strand of anthropological, ethical, and political studies argues that animals should properly be recognized as working subjects. Be it guide dogs, truffle hogs, logging elephants, or dairy cows—working animals, they argue, are owed wholly new legal and ethical duties. This article builds on these arguments to examine the consequences of “animal labor” for trade law: Are animals wrongly classified as commodities or resources? Is there a need and room to recognize animals as service providers under the General Agreement on Trade in Services (GATS)? What are the legal consequences of this proposed change? This article sets out to answer these questions and argues that recognizing animals as workers in trade law is conceptually coherent and can play a crucial role in empowering states to protect animals effectively at the international level.     

Treating alcohol-related violence: a feasibility study of a randomized controlled trial in prisons

Purpose: There is a lack of good-quality outcome evaluations of interventions for offenders whose crimes are alcohol-related. Randomized controlled trials (RCTs) are considered gold standard in treatment evaluations. Here, we report on a feasibility study for an RCT of an alcohol-related violence intervention, Control of Violence for Angry, Impulsive Drinkers (COVAID). Method: 115 adult male prisoners were randomly allocated to COVAID plus treatment as usual (TAU) or TAU only. Results: Most participants (84%) found COVAID useful. Reconviction data at six months were accessed for 109 (95%) participants. There were no differences between the two groups on violent reconvictions or all reconvictions at the six-month period, but at 17?months the COVAID group had 13% fewer people reconvicted for violence, and 20% fewer had reconvictions for any offence. Conclusion: The results indicate that an RCT is feasible and provides parameters for designing a full RCT. Differences in reconviction between groups favoured COVAID and were clinically important.     

Morality, Law and the Fair Distribution of Freedom

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality.     

Comparison of outcomes of patients with personality disorder to patients with mental illness,following discharge from medium secure hospital: systematic review

Background: Medium secure hospitals (MSHs) are costly yet outcome studies, particularly regarding the differential effects of diagnosis, are scant. Research Question: Are there differences in outcomes after MSH discharge for patients with PD compared to patients with mental illness (MI): systematic review. Method: Systematically reviewed studies which distinguished outcomes for patients with PD from those with MI, regarding reconvictions, readmissions and/or mortality rates. Results: From eight studies, comprising 1017 patients, mean reconviction rates per 100,000 person-years for patients with PD were higher (14,369) than those with MI (7799). However, mean readmission and mortality rates were lower (8403 and 668 per 100,000 person-years) compared to those with MI (13,390 and 1083) per 100,000 person-years. Conclusions: Diagnosis appears to differentially impact on reconviction, readmission and mortality rates. Services could tailor pathways to prioritise symptom management and promoting healthy lifestyles for patients with MI, and reducing reoffending for patients with PD.     

Facing the Boundaries of Epistemology: Kumārila on Error and Negative Cognition

Kumārila’s commitment to the explanation of cognitive experiences not confined to valid cognition alone, allows a detailed discussion of border-line cases (such as doubt and error) and the admittance of absent entities as separate instances of cognitive objects. Are such absent entities only the negative side of positive entities? Are they, hence, fully relative (since a cow could be said to be the absent side of a horse and vice versa)? Through the analysis of a debated passage of the ?lokavārttika, the present article proposes a reconstruction of Kumārila’s view of the relation between erroneous cognitions and cognitions of absence (abhāva), and considers the philosophical problem of the ontological status of absence.     

Community-based forensic child and adolescent mental health services in England,Scotland and Wales: a national mapping exercise

Aim: We sought to ascertain the current nature of specialist community mental health provision for young people presenting with risk of harm to others or involvement with the youth justice system in England, Wales and Scotland. Methods: Questionnaire-based survey. Results: Fifty-five services were contacted, 48 responded and 35 of these were found to be providing some form of community mental health provision to high-risk young people. Thirteen services provided comprehensive community forensic child and adolescent mental health (FCAMH) services, whilst the remainder offered more ad hoc clinical input. Amongst the comprehensive FCAMH services, staffing, function, commissioning arrangements and population served varied widely. Conclusions: There is patchy geographical provision of comprehensive community FCAMH services across England, Scotland and Wales with heterogeneous commissioning arrangements, staffing and function. Development of a national commissioning strategy for community FCAMH services is required to ensure that the complex needs of high-risk young people are adequately addressed.     

Psychological distress and severity of personality disorder symptomatology in prisoners convicted of violent and sexual offences

Abstract

Background: There have been recent proposals in England and Wales to develop services aimed at reducing the risk to the public posed by offenders with so-called “severe personality disorder”. The emphasis of the proposals is on risk. However, prisoners with personality disorder may have psychiatric treatment needs other than those purely relating to public protection. The aim of the study was to examine the association between severity of self reported personality disorder pathology and psychological distress in serious offenders.

Method: All male prisoners in two prisons, convicted of violent or sexual offences, were sent the Personality Diagnostic Questionnaire 4+(PDQ?4+) and the Symptom Checklist 90-R (SCL-90-R).

Results: High levels of self reported personality pathology were associated with high levels of psychological distress.

Conclusions: Offenders with the most severe self reported personality disorder pathology experience distress that may be clinically significant. Services for offenders with personality disorder will need to address their associated psychiatric symptoms.     

Juvenile Delinquency in Nigeria: The Problem of Application of Western Theories

There is no universal theory of delinquency. Cross-cultural studies of delinquency will help in identifying Western theories of delinquency that are culturally specific or culturally universal.

This paper investigates the applicability of Western theories of delinquency to Nigerian conditions. The paper concludes the family-based theories [family attachment, poor parental characteristics, parent-child relationship, parental supervision, parental support, parental physical punishment (Glueck and Glueck, 1950, 1968; Nye, 1958; Gold, 1963; Reiss, 1975; Empey and Lubeck, 1971; Sutherland and Cressey, 1960, 1966; Hirschi, 1969; Jensen, 1972, and Grove and Crutchfield, 1982)], differential association (Sutherland 1939), urban conditions (Shaw and McKay, 1942), economic conditions (Bonger, 1916), social control (Hirschi, 1969), and culture conflict (Sellin, 1938) are the most applicable western theories of delinquency to Nigeria. Furthermore, theories such as poverty, broken-home, labeling, and gang membership are found to be inapt to explaining delinquency in Nigeria. Additionally, obstacles to delinquency studies in Nigerian are delineated.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

Judging guilt and accuracy: highly confident eyewitnesses are discounted when they provide featural justifications

Jurors are heavily swayed by confident eyewitnesses. Are they also influenced by how eyewitnesses justify their level of confidence? Here we document a counter-intuitive effect: when eyewitnesses identified a suspect from a lineup with absolute certainty (‘I am completely confident’) and justified their confidence by referring to a visible feature of the accused (‘I remember his nose’), participants judged the suspect as less likely to be guilty than when eyewitnesses identified a suspect with absolute certainty but offered an unobservable justification (‘I would never forget him’) or no justification at all. Moreover, people perceive an eyewitness’s identification as nearly 25% less accurate when the eyewitness has provided a featural justification than an unobservable justification or simply no justification. Even when an eyewitness’s level of confidence is clear because s/he has expressed it numerically (e.g. ‘I am 100% certain’) participants perceive eyewitnesses as not credible (i.e. inaccurate) when the eyewitness has provided a featural justification. However, the effect of featural justifications – relative to a confidence statement only – is maximal when there is an accompanying lineup of faces, moderate when there is a single face and minimal when there is no face at all. The results support our Perceived-Diagnosticity account.     

Transferring Pre‐Teens to Adult Criminal Courts: Searching for a Justification

This research examined the demographic and offense‐related characteristics of 1,488 children who were 12 years of age or younger when transferred by juvenile court judges to criminal courts in the United States from 1985 to 2009. Juvenile court statistics show a twofold increase in the number of these children transferred between 2005 and 2009, compared to the five‐year era between 1985 and 1989. Examination of the data revealed that the major offense that precipitated most of these transfers was a nonviolent act. Given these facts, a number of key questions emerged from this study: (1) Are these transfers desirable given the potential lifelong consequences of a criminal conviction for these youngsters; (2) Do these practices accomplish a legitimate crime control function; and (3) Are these transfers just and fair given the developmental status of these children?     

Postmortem Measurement of Human Chorionic Gonadotropin in Vitreous Humor and Bile

Abstract: Postmortem human chorionic gonadotrophin (HCG) blood assay can confirm postmortem diagnosis of pregnancy or document situations in which HCG levels are elevated. In some cases, however, blood sampling is not possible at autopsy. In this study, HCG was quantified by enzyme‐linked fluorescent assay (ELFA) in the bile (n = 5), vitreous humor (n = 4), and postmortem blood (n = 4) of five pregnant women. There were no false negatives in the pregnant subjects (n = 5) or false positives in controls (n = 34), enabling this test to be recommended for routine use in forensic contexts in which the detection of elevated HCG levels could be of interest.     

Sex‐ and Size‐Related Patterns of Carrion Visitation in Necrodes littoralis (Coleoptera: Silphidae) and Creophilus maxillosus (Coleoptera: Staphylinidae)

The estimation of postmortem interval (PMI) based on successional patterns of adult insects is largely limited, due to the lack of potential PMI markers. Sex and size of adult insects could be easily used for such estimation. In this study, sex‐ and size‐related patterns of carrion attendance by adult insects were analyzed in Necrodes littoralis (Coleoptera: Silphidae) and Creophilus maxillosus (Coleoptera: Staphylinidae). For both species, abundance of males and females changed similarly during decomposition. A slightly female‐biased sex ratio was recorded in N. littoralis. Females of N. littoralis started visiting carcasses, on average, one day earlier than males. There was a rise in size of males of N. littoralis at the end of decomposition, whereas for females of both species and males of C. maxillosus, no size‐related patterns of carrion visitation were found. Current results demonstrate that size and sex of adult carrion beetles are poor indicators of PMI.     

Equality

“Equality” is a notion about which disagreement arises not simply due to lack of clarity and precision (or intellectual dishonesty and bad faith). Rather, equality is an idea that implies and implicates some form of disagreement as a constitutive possibility of its horizon of discussion. This, in my view, is both a problem and an opportunity. I submit that equality is a plural notion: There are only equalities, practices aimed at removing situated circumstances of inequality and discrimination.