‘Full’ Compensation Criteria: An Enquiry into Relative Merits

The principle of full compensation is said to restore the victim of an accident to the position he was in before the tort. The conventional pre-tort position of the victim is taken to be the one in which he bears no accident losses at all. Therefore, a negligent injurer is required to compensate his victim fully. In an interesting paper in this journal, Van Wijck and Winters (2001) have reinterpreted the pre-tort position of the victim, and proposed an alternative specification of liability for the purpose of compensation. We study the relative merits of the two compensation criteria. We show that while the alternative compensation criterion is indeed insightful from economic as well as legal point of view, at the same time it suffers from some serious limitations.     

Natural advantages and contractual justice

Anthony Kronman has argued that libertarians cannot distinguish non-arbitrarily between legitimate and illegitimate advantage-taking in contractual relations except by reference to a liberal, wealth-redistributive standard Kronman calls paretianism. We argue to the contrary that libertarians need not concede that any advantage-taking in contracts is legitimate and thus need not be liberal paretians with respect to advantage-taking.     

Appeals to community and crime prevention

This paper considers the growing appeals to the idea of community in criminal justice policy and the involvement of actual communities in criminal justice initiatives. It draws on a completed two year research study of a number of community-based crime prevention initiatives in the South East of England. The paper considers the nature of community to which appeals are made in criminal justice discourse and policies, the contribution of community to the practices of social order and the nature of community representation and participation in crime prevention initiatives. It is argued that appeals to community in crime prevention, and crime control more generally, embody shifts in what constitutes the legitimate responsibilities of individuals, collectivities and the state. This has a number of implications, the first of which is a redrawing of the cost of policing and security services. Additionally, there is an associated shift in blame for failure. Finally, actual community involvement in crime control gives rise to new structures and forms of local governance that evoke key questions about the regulation of social relations, the nature of conflict resolution, citizenship, democracy and social justice.     

Expanding coupled shock fronts of urban decay and criminal behavior: How U.S. cities are becoming “hollowed out”

This work attempts to formalize an emerging paradigm in criminology, examining the structural consequences of feedback between community physical decay and behavioral pathologies caused by the social disintegration resulting from that decay. Adaptation of a standard reaction/diffusion approach produces a model of radially expanding coupled traveling-wave shock fronts of interrelated contagious physical decay and criminal activity. The standard threshold theorem associated with the model equations suggests that currently advocated triage policies, which recommend the virtual abandonment of bad communities behind the expanding front, will fail spectacularly. The model suggests that, just as the hollowing-out process has a complex, synergistic and dynamic structure, so, too, must interventions be interactive and mutually reinforcing, adaptively, targeted at communities in all stages of the phenomenon.     

The Cost of the Game: A Taxonomy of Social Interactions

This paper considers the role of reciprocity rules in various strategic settings. After distinguishing four typical categories of social interaction, the paper examines three forms of reciprocity constraints. An ideal rule of perfect incentive alignment (structural reciprocity) serves as a benchmark for the analysis of a golden rule of reciprocity, characterized by a mechanical linking of one player's strategy to that of the other player; and a silver rule of stochastic reciprocity, characterized by a probabilistic symmetry in the relationship between the players.     

Juror decision making in the capital penalty trial

Two factors thought to influence jurors' penalty decisions in capital trials—the nature of the crime committed and the defense's portrayal of the convicted offender's character—were examined. Mock jurors were death-qualified and exposed to one of twelve simulated penalty trials. Each trial was comprised of one of three capital crimes and one of four defense strategies. Jurors were least punitive in robbery-murder conditions and most punitive in multiple murder conditions. A conceptual argument against capital punishment was the most effective defense; a mental illness defense was the least effective. Penalty decisions were mediated by three attributional variables: (a) juror perceptions of the defendant's volition, (b) juror perceptions of the defendant's future dangerousness, and (c) juror perceptions of the relative competency of the opposing attorneys.This article is based on the author's dissertation which received an Honorable Mention in the 1985 SPSSI Dissertation Prize competition. The research was made possible by grants from the University of California, Santa Cruz and Division 41 of the American Psychological Association. The author is indebted to Craig Haney, Elliot Aronson, and Dane Archer for their valuable suggestions and support.     

Everyday Life and Legal Values: A Concept Paper

This concept paper emerged from a Law and Human Behavior (LHB) Workshop, that was called by the journal's Editor, Richard Wiener, and held at St. Louis University on March 19–21, 1999. This workshop, which brought together 22 scholars and researchers in legal psychology, was part of James Ogloff's Presidential Initiative Project for the American Psychology/Law Society, and was supported by St. Louis University and an NSF grant. Prior to our arrival, each participant answered queries from the Editor about LHB and the field of psychology and law, and each was asked to offer five topics that were underrepresented in the journal or that we would like to see addressed in future issues. At the workshop, we were assigned to small groups, and the authors of this paper constituted one such group. The charge for all groups was to develop plans for encouraging submissions in areas of psycholegal scholarship that continue to be infrequent topics of investigation, and then to develop a concept paper. The direction our group took is captured by our title, Everyday Life and Legal Values, and within this paper we explicate the topic, identify a number of underrepresented research areas, suggest some research paradigms for investigating them, and present this within a perspectival directions frame that ties established lines of research to the newer ones we propose.     

Do trials have real winners?

Conclusion In this paper, narrative coherence has been looked at as an institutional strategy in anticipation of the verdict rather than in retrospect of the crime or charge. The analysis of binary notions has been instrumental in the reconstruction of the coherence between the narrative(s) and the theoretical outcomes of the criminal trial. As the abstraction and polarisation of narrative versions focus on the achievement of professional consensus, the verdict, which is almost always based on the selection of a binary option does injustice to any narrative which is unfolded in the court-room. Whether the defendant is acquitted or convicted, therefore, does not make him a winner or a loser, as his personal experience is abducted and institutionalised for the facilitation of smooth institutional decision-making.     

Contracts, Necessity and Ex Ante Optimality

In this paper I return to the issue of incentives to justify a narrowing of the applicability of a fair price rule to contracts of necessity. It is argued that such contracts should be viewed as part of a set of ex ante choices, one of which will minimize the costs of dealing with the risks associated with a period of temporary necessity. The Pareto optimality of a contract of necessity depends on whether the contract price would be seen by a potential victim of necessity as optimal ex ante, relative to her other choices with which to deal with the risk. It is shown that in the special case of a discrete choice set a fair price rule of law may not lead to efficient behavior on the part of both agents.     

Narcotics trafficking and the American mafia: The myth of internal prohibition

Numerous books assert that the Mafia long had a prohibition against engaging in narcotics trafficking, either for reasons of morality, or else because of the public stigma attached to drugs. In reality, there are many problems with the belief in voluntary abstention. The mythical nature of internal prohibition, and the far different reality, will be illustrated from the case of Philadelphia, supposedly the base for one of the most powerful and traditional-minded of all the American Mafia groups, the family headed from 1959 to 1980 by don Angelo Bruno. We will attempt to explain the roots of the prohibition myth, both for writers and for the wider public that appears so endlessly enthusiastic about sagas of organized crime. Finally, the paper examines the implications of this myth for policy makers in successive wars on crime.     

Jurors' Perceptions of Adolescent Sexual Assault Victims Who Have Intellectual Disabilities

Children and adolescents with intellectual disabilities are especially likely to be sexually abused. Even so, their claims are not likely to be heard in court, possibly because people assume that jurors will not believe them. We tested this assumption in a mock-trial study in which 160 men and women watched videotaped excerpts from an actual trial. As predicted, when the 16-year-old sexual assault victim was portrayed as mildly mentally retarded instead of as having average intelligence, jurors were more likely to vote guilty and had more confidence in the defendant's guilt; considered the victim to be more credible and the defendant to be less credible as witnesses; and rated the victim as more honest, less capable of fabricating the sexual abuse accusation, and less likely to have fabricated the sexual abuse accusation. Men and women were affected similarly by the disability manipulation, but women were generally more pro-prosecution in their case judgments and perceptions than were men. Finally, jurors who had more liberal views toward persons with disabilities were more likely than other jurors to make pro-prosecution judgments on measures of guilt. Implications for psychological theory and the law are discussed.     

How Large Should the Strike Zone Be in “Three Strikes and You're Out” Sentencing Laws?

So-called three strikes and you're out sentencing laws for criminal offenders have proliferated in the United States. The laws vary considerably in their definitions of what constitutes a strike. This paper adapts the classic Poisson process model of criminal offending to investigate how varying sentence lengths and definitions of what constitutes a strike affect the effectiveness and cost-effectiveness of these sentencing laws. In particular, it asks whether, by using different definitions for the first, second, and third strikes or different sentence lengths, one can make the resulting incarceration more efficient in the sense of incapacitating more crimes per cell-year served.     

Selective incapacitation and the Philadelphia cohort data

The University of Pennsylvania study of delinquency in a Philadelphia birth cohort has been described byNewsweek as perhaps the most influential piece of criminal justice research in the last decade (March 23, 1981). Many have construed the findings as showing that, if imprisonment were focused on the minority of offenders with especially bad prognoses, the rate of crime could be reduced substantially. But others have taken the opposite view that the cohort data, far from endorsing such a selective incapacitation strategy, might actually provide strong evidence that such an approach is futile. Through some further analyses of the Philadelphia data, we attempt to clarify their policy implications.     

Social justice and legal justice

The main aim of this paper is to challenge the validity of the distinction between legal justice and social justice. It is argued that what we usually call legal justice is either an application of the more fundamental notion of social justice to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about the proper relationship between these two concepts. Two views about the social justice/legal justice dichotomy are of particular importance and will provide the focus for the argument: this dichotomy is sometimes identified with a classical distinction between distributive and commutative justice and sometimes with the distinction between substantive and procedural justice.     

Terrorism and the law: Historical contexts, contemporary dilemmas, and the end(s) of democracy

Recent proposals by the G7 (and Russia) to clamp down on terrorists and terrorism do not define that which is prohibited. Instead, a threat is communicated which in turn allows, among other things, greater attention to be paid officially to camouflage charities and terrorist use of the Internet. Nevertheless, it is somewhat of a truism to note that terrorist violence is ultimately defined or characterized, for purposes of legal prohibition, within a highly politicized atmosphere. Starting with a short summary of anti-terrorist codification efforts made this century, this article examines some of the security interests cited by governments today in their respective struggles against terrorism. More specifically, it is argued that individual perceptions of personal and societal threat are heightened unnecessarily not only by a constant stream of governmental anti-terrorist rhetoric, but further, by an awareness of official and unofficial methods of anti-terrorist surveillance, and the use to which the information so obtained can be put.     

Globalisation and Conceptualisation in the Sphere of International Criminal Law

Professor Wiener mentions that [w]hile an agreement has evolvedin the juris-prudence concerning the meaning of criminal law' and publicinternational law', the opinions regarding what international criminallaw is still diverge to a great extent.1 The task of this report isto clear up what we mean by international criminal law, because itis not an exact expression.     

Beyond labeling: The case of the mentally retarded

This paper provides a review of the sociological literature on the mentally retarded. It attempts to analyze the reasons why the mentally retarded have been so thoroughly de-valued in our society that even social scientists ignore them as an object of study. The literature that does exist is primarily confined to the mildly retarded and generally applies labeling theory to understand the processes by which individuals unable to succeed in institutions such as schools are diagnosed as retarded. Studies employing labeling theory either ignore the severely retarded or allow the medical model as the only appropriate framework for understanding these populations.The failure to include the severely retarded in the general analysis of the problems of the handicapped by labeling theorists indicates a deficiency in the theory rather than the group excluded. A more critical perspective on the handicapped is required which ties the analysis to the study of other surplus populations such as the poor, the illiterate and other disposessed groups. The treatment of the severely retarded provides a looking-glass into the way our society can so de-value a dependent population that its very survival can be questioned.A version of this paper was presented to the Southern Sociological Society Meetings, Memphis, Tennessee, 1982.     

The state,public policy,and AIDS discourse

The paper probes the deep structure of perceptions of AIDS and the ensuing public policy trends. AIDS has become the latest symbol indexing 20th century conflicts over the family and sexuality and recapitulates some features of early debates over contraception and the control of sexually transmitted diseases. From 1981 to 1983, public talk about AIDS was virtually taboo. Since 1983, the massive proliferation of AIDS discourse has led to the development of an official story common in the press and clear in the presumptions underlying recent state policies in the United States, Canada, and the United Kingdom. These policies have favored state control of sexual speech and education, as well as control of people blamed for HIV infection, while community-based groups have sought to empower people to affirm their sexuality while avoiding viral transmission.     

Insanity,justification, and culpability toward a unifying schema

Insanity has long been viewed as an excuse rather than a justification: Insane people are acquitted not because they did nothing wrong, but because they are considered morally blameless for their wrongful conduct. A new substantive test based on justificatory rather than exculpatory principles—a quasisubjective justification (QSJ) test—is compared to Finkel's relative culpability test, and to two excuse oriented tests, ALI and IDRA, across seven cases. QSJ and Finkel's test both produced significant verdict differences, whereas ALI and IDRA verdicts were not significantly different. The QSJ effect, however, was observed only in cases judged low in justification, and thus did not play a determinative role across cases; other variables, such as perceived severity of the disorder and culpability for bringing about the disorder, to which only Finkel's test was sensitive, seem to have more explanatory power.     

Effects of Positive Impression Management on the Psychopathic Personality Inventory

The Psychopathic Personality Inventory (PPI; S. O.Lilienfeld & B. P. Andrews, 1996) is a self-report test that has shown considerable promise as a screening measure for psychopathy. A current limitation of the PPI is that no data exist regarding the impact of response sets such as positive impression management. Although the PPI contains a validity scale (Unlikely Virtues) designed to identify response biases such as faking good, its utility has not yet been assessed. In this study a repeated measures analogue design was employed in which 186 respondents completed the PPI both under standard conditions and with specific instructions to create a favorable impression of themselves. In the fake good condition, participants were able to appear significantly less psychopathic, with those who obtained higher scores in the standard instruction condition showing the largest decreases in their PPI scores. Receiver Operating Characteristic analyses indicated that, although the Unlikely Virtues scale significantly differentiated between fake good and honest protocols (area under the curve = .73), a considerable number of misclassifications occurred. The clinical and forensic implications of these findings are discussed.