Why Have-Nots Win in the HIV Litigation Arena: Socio-Legal Dynamics of Extreme Cases*

This study focuses on “extreme” cases, those in which “have-nots,” usually people with HIV (PWAs), win HIV-related disputes in direct contests with “haves.” Using extensive data gathered in the United States, we searched for a socio-legal explanation of how PWAs have managed to win claims against insurance companies, government agencies, and other institutional plaintiffs. We also looked at judicial preoccupation with PWAs as carriers of contagion. We have observed that PWAs win against haves when: their needs-based claims attract third parties with strategic interests and independent resources; and when litigators cause decision makers to identify with PWAs and employ proven scientific arguments to defeat fear of their clients' contagion. For example, gay activist lawyers devised such an effective strategy by defining PWAs as persons with disabilities and by extending to them the antidiscrimination protections won earlier by disability rights' lawyers. While this approach brought relief in court for some and secured a less onerous identity for PWAs, its importance is diminishing with the shifting epidemiology of HIV in the United States.     

Alcohol‐Induced Blackout as a Criminal Defense or Mitigating Factor: An Evidence‐Based Review and Admissibility as Scientific Evidence

Alcohol‐related amnesia—alcohol blackout—is a common claim of criminal defendants. The generally held belief is that during an alcohol blackout, other cognitive functioning is severely impaired or absent. The presentation of alcohol blackout as scientific evidence in court requires that the science meets legal reliability standards (Frye, FRE702/Daubert). To determine whether “alcohol blackout” meets these standards, an evidence‐based analysis of published scientific studies was conducted. A total of 26 empirical studies were identified including nine in which an alcohol blackout was induced and directly observed. No objective or scientific method to verify the presence of an alcoholic blackout while it is occurring or to confirm its presence retrospectively was identified. Only short‐term memory is impaired and other cognitive functions—planning, attention, and social skills—are not impaired. Alcoholic blackouts would not appear to meet standards for scientific evidence and should not be admissible.     

The “Discourse” of International Law and Humanitarian Intervention

This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the transformation of the paradigm of “humanitarian intervention” into the current doctrine of the “responsibility to protect,” which under the rubric of “responsibility” legitimizes limitations on a state's sovereignty in cases where the state fails to guarantee the protection of its own population. This reconstruction of the genealogy of “humanitarian intervention” illustrates the continual exceptions to the principle of nonintervention, which means that the Westphalian principle of sovereignty has always been violated. Both doctrines—humanitarian intervention and the responsibility to protect—can be considered “hegemonic techniques” that use so‐called universal concepts in order to legitimize unilateral power interests.     

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

Simultaneous Identification of Four “Legal High” Plant Species in a Multiplex PCR High‐Resolution Melt Assay,

The international prevalence of “legal high” drugs necessitates the development of a method for their detection and identification. Herein, we describe the development and validation of a tetraplex multiplex real‐time polymerase chain reaction (PCR) assay used to simultaneously identify morning glory, jimson weed, Hawaiian woodrose, and marijuana detected by high‐resolution melt using LCGreen Plus^®. The PCR assay was evaluated based on the following: (i) specificity and selectivity—primers were tested on DNA extracted from 30 species and simulated forensic samples, (ii) sensitivity—serial dilutions of the target DNA were prepared, and (iii) reproducibility and reliability—sample replicates were tested and remelted on different days. The assay is ideal for cases in which inexpensive assays are needed to quickly detect and identify trace biological material present on drug paraphernalia that is too compromised for botanical microscopic identification and for which analysts are unfamiliar with the morphology of the emerging “legal high” species.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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Litigating Corporate Human Rights Information

This article analyzes trends in litigation brought against corporate actors regarding human rights information. Such information includes, but is not limited to, statements on packaging claiming that products are “ethically sourced” and investor-facing disclosures representing that an issuer's operations are environmentally friendly. It proceeds by outlining the sources of human rights-related disclosures as they arise under both legal and voluntary regimes. The article then addresses the case law. Recent years have seen an increase in lawsuits involving human rights information, or lack thereof, imparted by companies. Consumer protection or consumer fraud cases are being filed, alleging that companies have either provided false and misleading information or omitted information about corporate human rights impacts and mitigation efforts. Investors are filing similar claims. The article examines the trend and considers the role of this litigation both in holding companies to their word and in providing corporate accountability for the underlying human rights abuses that false or misleading human rights information may mask. It ultimately argues that, although success at trial in such cases remains elusive, litigation is a useful and potentially growing tool for holding companies to their word regarding human rights claims. It contextualizes this litigation, arguing that other means by which companies can be held to their word should be strengthened, including public enforcement and—potentially—new disclosure and due diligence laws.     

The Mechanisms behind Litigation's “Radiating Effects”: Historical Grievances against Japan

Scholars argue that litigation can have positive and negative “radiating” or indirect effects for social movements, irrespective of formal judicial decisions. They see litigation as a dynamic process with distinctive features yet nonetheless intertwined with advocacy in other forums. Litigation can indirectly shape collective identities, reframe debates, or provide political leverage. However, the mechanisms behind these radiating effects are poorly understood. Through an analysis of lawsuits and related activism by Korean survivors of Japanese actions in the first half of the twentieth century, this article disaggregates the mechanisms behind litigation's productive indirect effects. It theorizes and illustrates mechanisms such as attribution of similarity, brokerage, issue dramatization, political cover, and intergroup discussions. These mechanisms help us understand how litigants obtain litigation's indirect effects and thus also the broader impact of postwar compensation lawsuits in East Asia, despite few judicial victories. The article contributes non‐Western and transnational cases to scholarship on litigation's indirect effects.     

The structure of medical malpractice decision-making in Japan

The article summarises the problems in the medical malpractice litigation systems in the United Kingdom and Japan, demonstrating the similarities and identifying the length of time between initiating an action and its decision and other factors responsible for lengthy litigation. Based on analysis of decisions of medical malpractice cases between 1986 and 1998 in Japan, the functioning of the Japanese medical malpractice litigation system is discussed. Lengthy litigation is shown to be correlated with outcome and implies that the Japanese medical dispute resolution mechanism favours those who can endure lengthy litigation, namely the defendants, who are physicians or hospitals. In view of the similarities between the two systems, it is likely that the same bias--that the wealthier party in the litigation is more likely to win the case--also occurs in medical malpractice litigation in the United Kingdom and Australia.     

How the Party Can Win in Personal Vote Systems: The “Selectoral Connection” and Legislative Voting in Lithuania

Electoral rules can motivate politicians to cultivate a “personal vote” through their legislative voting records. However, I argue that candidate‐selection procedures have the ability to overpower these electoral incentives. This study—the first systematic study of how candidate selection and electoral rules interact—takes advantage of Lithuania's unique mixed electoral rules and fortuitous candidate‐selection procedures. Regardless of electoral rules, MPs whose future careers depend on getting renominated by central party leaders vote against the party less than those whose careers do not. This evidence of a “selectoral connection” suggests candidate‐selection procedures must be studied much more seriously.     

Class Jurisprudes: Free Labor Ideology and For‐Profit Penal Labor in Gilded Age Courts

For‐profit penal servitude flourished in Gilded Age America. Prisoners produced consumer goods inside factory‐penitentiaries for private enterprise. Regulations protecting free labor encountered litigation by businesses invested in carceral capitalism. Judges who defended “liberty of contract,” maintained “state neutrality,” and condemned “class legislation” exhibited a different approach when evaluating labeling laws. Such statutes were seemingly consonant with the free labor ideology that dominated appellate benches—they remediated markets distorted by state‐created privileges. Yet courts routinely struck them down. This article argues that judges were motivated by a class‐infused framework structuring interpretation of facts and aliening lower‐class Americans. Judges perceived workingmen who sought remedial assistance as seeking class legislation; they saw prison inmates and products as ordinary workers and goods, not as captive manpower and state‐subsidized wares. Jurisprudence bent and bowed from judges’ values and associations. This article thus reintroduces the explanatory power of class to the Lochner era through judicial subjectivity.     

Self‐harm Risk Among Adolescents and the Phenomenon of the “Blue Whale Challenge”: Case Series and Review of the Literature

The “Blue Whale Challenge” is a dangerous Internet phenomenon. As per media reports, it involves a series of life‐threatening tasks imposed by a “curator” to “players,” who must fulfill the whole list, and it ends with the suicide of the player. The authors report the data of five suspected cases of “Blue Whales” managed from January 2016 to December 2017 by the staff of a unit (the “Bambi Unit” of the Pediatric Hospital “Regina Margherita” of Turin, Italy) that is dedicated to the evaluation of suspected abused children. Then, they analyzed this data in the light of the literature regarding self‐harm. This comparison highlights the role of the Internet in the spreading of self‐harm behavior among vulnerable adolescents who are characterized by epidemiological, psychological, psychiatric, social, and cultural risk factors. In conclusion, the authors suggest a multidisciplinary and specialized approach in the evaluation of adolescents who committed self‐harm activities.     

Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide”

This article examines the nature of racial bias in the death sentencing process. After reviewing the various general explanations for the continued significance of race in capital cases, we report the results of an empirical study in which some aspects of racially biased death sentencing are examined in depth. Specifically, in a simulated capital penalty‐phase trial setting where participants were assigned to small group “juries” and given an opportunity to deliberate, white male jurors were significantly more likely to sentence black defendants to death than were women and nonwhite jurors. This racialized pattern was explained in part by the differential evaluation of the case facts and the perceptions of the defendant that were made by the white male jurors. We discuss these findings in light of social psychological theories of contemporary racism, and we conclude that the demonstrated bias in capital jury settings should be understood as an interaction of several factors, including individual juror characteristics, group‐level demographic composition, and group deliberation processes.     

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top‐rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.     

Optical Characterization of Some Modern “Eco‐Friendly” Fibers*

Abstract: Fibers that are termed “eco‐friendly” or “biodegradable” by manufacturers are increasingly being used in textile products such as apparel and carpeting to appeal to the ever more environmentally aware public. As such, these modern fibers are expected to begin showing up more often in forensic casework, and it is important that the forensic examiner recognize them. This study employed polarized light microscopy (PLM) and Fourier transform infrared (FTIR) microspectroscopy to characterize selected fibers of azlon, polylactic acid (PLA), cellulose composites of alginate or chitin, and bamboo (viscose rayon). Fiber cross‐sections, refractive indices, melting points, solubilities, and FTIR measurements were conducted. Results indicate that the azlons and PLA fibers are easily distinguishable from other textile fibers by their optical and chemical properties. The cellulose composites show only small differences in comparison with other cellulose‐based fibers, while bamboo viscose rayon is indistinguishable from normal viscose rayon.     

“Bending” Evidence for a Cause: Scholar‐Advocacy Bias in Family Law

There are a number of salient public policy issues in the family law field that have invoked impassioned policy debates on a recurrent basis. In the absence of a body of research to address these critical concerns, advocates under the guise of social science scholarship have exacerbated the confusion and controversy by construing the scant available research evidence to justify their own ends, without regard to the relevance, quality, utility, and limitations of the studies. This is one of two articles on this problem that we have named “scholar‐advocacy bias.” In this article, we discuss the difference between truth in social science and truth in law. We identify common ways in which social science researchers and reviewers of research—wittingly or unwittingly—can become advocates for ideological positions and social policies at the expense of being balanced reporters of research evidence as illustrated by recent debates about overnight parenting of infants and toddlers. We also consider how adherence to established scientific principles and methods prevents the misuse of research in this way.     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.