Montesquieu's Mistakes and the True Meaning of Separation

In The Spirit of the Laws, Montesquieu concluded that a constitutionof liberty could best be achieved, and had been achieved inBritain, by assigning three essentially different governmentalactivities to different actors. He was wrong. His mistaken conclusionrested on two errors. First, Montesquieu thought that the primaryexercise of powers could durably be divided only where thosepowers differed in kind. Second, Montesquieu failed to recognizethe lawmaking character of executive and judicial expositionof existing law. This article analyzes implications of Montesquieu’smistakes for modern claims, both in Britain and in the UnitedStates, that liberty and the rule of law are promoted by separatingpower in certain contexts. In particular, this article questionsthe British Government’s recent claim that the valuesunderlying separation-of-powers theory call for removing ultimateappellate jurisdiction from the House of Lords. It also tracesMontesquieu’s influence on the American founders’attempt to separate power along essentialist lines, and considerssome sub-optimal consequences of that attempt, including thenon-delegation quandary and the emergence of an unchecked judiciallawmaker.     

Social Movements and Social-Change Litigation: Synergy in the Montgomery Bus Protest

Two competing schools of thought have emerged to explain how the Montgomery bus protest of 1955–56 brought about changes on the city's Jim Crow buses. The dominant explanation attributes the changes to the bus boycott led by Martin Luther King, Jr., and the Montgomery Improvement Association. A second interpretation emphasizes the critical role of the Supreme Court's decision striking down the state and local bus segregation laws. This essay prooides a third explanation: that these two strategies–the boycott and the litigation–interacted, each shaping and reinforcing the other. Each strategy war a critical part of the struggle, but neither brought change by itself. This essay argues that the two strategies of the Montgomery protest created a synergy that was the key to bringing about changes on the buses.     

Federal Government Leasing: Costs, Incentives, and Effects

This article examines the lease or borrow decision from the perspective of the United States federal government as the lessee. It argues that there are several sources of friction in the leasing market that will make leasing more costly than buying for the federal government. Nevertheless, the budget process contains powerful incentives for federal government agencies to lease even though leasing is the most costly alternative.     

Accepting Conflict and Experiencing Creativity: Teaching "Concertation" Using La Francilienne CD-ROM

This article discusses the use of the La Francilienne CD-ROM, which I developed with my colleague Alain Lempereur, law professor at ESSEC Business School, near Paris. As a professor in the ESSEC Department of Environment, I use the CD-ROM as the basic tool for my course "Concertation, Decision, and Local Democracy." The CD-ROM's simulation of a public negotiation process for a highway project allows me not only to teach basic concepts and methods of negotiation and mediation but also to enhance two important concepts in public decision processes in planning and environment: conflicts and creativity. The students are given the opportunity first to experience, and then to discuss, conflict and creativity in a quasi-real setting. These experiences and discussions encourage an internal change process for the students and help them to integrate the negotiation and mediation concepts and methods taught. This internal change will be conceptualized in this article according to two educational theories: transitional thinking theory and experiential learning theory.     

Labeling effects of initial juvenile justice system processing decision on youth interpersonal ties*

The juvenile justice system can process youth in myriad ways. Youth who are formally processed, relative to being informally processed, may experience more public and harsh sanctions that label youth more negatively as “deviant.” Drawing on labeling theory, the current study evaluates the relative effect of formal justice system processing on the interpersonal dynamics of youth peer networks. Using data from the Crossroads Study, a multisite longitudinal sample of first-time adolescent offenders, the current study applies augmented inverse probability weighting and generalized mixed-effects models to estimate the effects of formal processing on friendship selection processes of homophily and withdrawal and considers whether these effects vary by race and ethnicity. Consistent with expectations of homophily, formally processed youth acquire more new deviant peers and fewer nondeviant peers during the 3 years after their initial processing decision compared with informally processed youth. The findings suggest no differences exist across processing types in withdrawal from friends. These effects were consistent across racial and ethnic groups. Ultimately, this study explores the dynamic interpersonal mechanisms associated with labeling theory and offers additional insight into the negative effects of formal processing.     

QUESTIONING SEQUENCES IN CANADIAN POLICE INTERVIEWS: CONSTRUCTING AND CONFIRMING THE COURSE OF EVENTS?

A content analysis of 19 Canadian police interviews with adult witnesses revealed that several of the interviewing strategies used by officers ran counter to the recommendations in the literature. Specifically, interviewers interrupted the witness more than was necessary, rarely employed any cognitive techniques to enhance memory recall and asked far more closed than open-ended questions. Further, in terms of the sequencing of questions, a pattern emerged across interviews that suggested that officers first “help” the witness construct the event and then, through a rapid sequence of “yes/no” questions, seek to confirm the account. We argue that this pattern of questioning may suggest that officers are pursuing an assumed version of events and that exploring interviews from a sequencing perspective may prove beneficial in identifying possible biased versions of events.