Precedent Externality, Network Effect, and the Possible Inefficiency of the Evolution of Laws

Using the traditional scenario of tort conflict as an example, I argue that the marginal precautionary costs of injurers and victims are not constant, as was assumed by most previous researchers. The precedent of a liability rule has some natural externality on the precaution technology, and hence marginal cost, faced by future agents involved in torts. The adoption of legal rules therefore has a network effect, meaning that the present prevalent adoption of one rule increases the probability of its future adoption. Treating the dynamic evolution of legal rules as a random process, we are able to apply an established result in the literature of network economies to conclude the path-dependence, non-predictability, and potential inefficiency concerning the final legal rule to which the dynamics converge.     

Distributive Justice and Crime

The heavy concentration of crime on a few areas, and the concentration on the chronically victimised within those areas, together illustrate the gross inequality of the risk of crime victimisation. This inequality also characterises other hazards of life. Criminology has too often reduced the problem of crime to the problem of the offender. Recognising crime hazard as an issue of distributive justice requires a different mind set. The Crime and Disorder Act 1998 recognises the drivers of crime as lying outside criminal justice, but does not put in place a panhazard analysis of the kind required, community safety being presented as a type of crime prevention. Movement towards panhazard thinking may well be somewhat facilitated by the workingthrough of the incorporation of the European Convention on Human Rights, actions flowing from section 17 of the Crime and Disorder Act, and a reconsideration of how emergency services might work.     

Saleem A. Shah

This article introduces a special section ofLaw and Human Behavior entitled Commenorative Articles in Memory of Saleem Shah. The six articles that it introduces describe Shah's lifetime contributions to the development of concepts and research in law and mental health, as well as his substantial influence on the quality of forensic mental health services nationally and internationally.     

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.     

“Ice is strong enough for a man but made for a woman”

This paper is concerned with the cultural and gendered context of crystal methamphetamine use among Asian Pacific Americans, and draws on recent sociological discussions on masculinities and feminities. The data are based on an ethnographic study of moderate to heavy ice users, and compares the experiences of Asian Pacific American women and men in their initiation to use, their motivations to continue using, and the changing nature of their relationship to the drug and significant others. The paper concludes with a gender comparison of the violence associated with crystal methamphetamine use.The research for this paper was supported by a grant to theInstitute for Scientific Analysis from the National Institute on Drug Abuse (R01-DA06853) awarded to Patricia Morgan, Ph.D., entitled Ice and Other Methamphetamine Use: An Exploratory Study. The data collected for this paper was helped by the collaborative efforts of the study research staff: Jerome Beck, Douglas McDonnell and Rachel Gutierrez. The author also acknowledges the Social Science Research Institute at the University of Hawaii. The opinions and conclusions are those of the author.     

Do Standards of Proof Affect Decision Making in Child Protection Investigations?

Every state investigates child maltreatment reports. Some states use a lower standard of proof of some credible evidence (or similar terms) to substantiate cases after investigation. Other state legislatures prescribe a higher standard of preponderance of the evidence. Legislatures use these terms of art as a matter of policy to control the risk of false-positive errors. A lower rate of substantiation should follow from a higher standard of proof. There was no statistically significant difference in the percent of substantiated and the percent of unsubstantiated cases in the two groups of states. If state policy to reduce the false-positive error rate is to be effective, something more is required than simply manipulating the verbal formula in legislation.     

Marxism and the criminal question

The question considered is whether it is possible to trace a theoretical strategy for a criminal policy on the basis of Marx's work. The answer offered is that Marxian political and economic analysis does not supply any general theory of criminality and that any attempt to formulate such a theory (as in Lenin, Paukanis or Gramsci) necessarily leads to authoritarian and regressive conceptions of crime and punishment. Nevertheless the authors maintain that it is possible to trace three theoretical suggestions within Marxian thought which allow of a fruitful approach to the criminal question. The first suggestion relates to the economic roots of many aspects of modern criminality; the second regards the Christian and bourgeois superstition of moral liberty and individual culpability; the third suggestion deals with the lack of a guaranteed social space as the prime root of crime. These theoretical suggestions permit clarification of the social character of penal responsibility and this character points to the need for the socialization (but not deregulation) of criminal treatment.This essay grew out of a reply to a questionnaire drawn up by La questione criminale, an Italian review which tries to approach the criminal question from a Marxist standpoint.     

Social Influence in Eyewitness Recall: A Meta-Analytic Review of Lineup Instruction Effects

Past research has considered the impact of biased police lineup instructions upon eyewitness lineup performance. Biased instructions either suggest to the eyewitness that the perpetrator is in the lineup or otherwise discourage a no choice response. A meta-analysis of 18 studies was employed to review the hypothesis that biased instructions lead to greater willingness to choose and less accurate lineup identifications than do unbiased instructions. The role of moderating variables in the instruction procedure was also considered. In support of the hypothesis, a significantly higher level of choosing followed biased instructions. Lineup type moderated performance accuracy, however. For target-absent lineups the increased level of choosing following biased instructions resulted in reduced identification accuracy. Biased instructions within a target-present lineup generated a higher level of confidence, but had minimal impact on accuracy. Implications for police practice are discussed.     

Women on the edge of crime: Crack cocaine and the changing contexts of street-level sex work in New York City

In this paper, we attempt to examine, engender and contextualize the theses that (i) women's emancipation escalates [women's] crime and violence and (ii) women's drug use escalates [women's] crime and violence, by drawing on ongoing ethnographic fieldwork in relation to women crack smokers and the changing contexts of street-level sex work in New York City. The paper attempts to illustrate how the position of women crack smokers can only be understood by locating their lives, their illicit drug use and their income-generating activities within the context of a specific set of localized socio-economic and cultural developments. We suggest that observations from our research refute the theses that women are becoming more criminal and/or violent in the context of either their consumption of crack cocaine or their alleged emancipation.An earlier version of this paper was presented by the first author at the Joint Meetings, Law and Society Association and Research Committee on the Sociology of Law of the International Sociological Association, Amsterdam, 26–29 June 1991.     

Estimating the numbers of prison terms in criminal careers from one-step probabilities of recidivism

A method of using estimates of one-step probabilities of recidivism, i.e., conditional probabilities of individuals returning to prison for the jth time given release for the (j-1)st time, to estimate the numbers of prison terms expected to be accumulated by the individuals, is presented. The method is illustrated by calculating the expected numbers of prison terms separately for racial and gender groups in a large data base of Western Australian prisoners. The recidivism probabilities for these data were estimated by fitting Weibull mixture models to the (possibly censored) times to recidivate. The probabilities increase strongly asj increases from 1 to 6, then level off. Large differences between them are due to racial and gender group and these are reflected in the differing expected prison career durations for these groups. The effect of interventions which might lower recidivism is discussed in the light of the method as applied to these estimates.     

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.     

The Role of EU Internal Policies in Implementing Greenhouse Gas Mitigation Options to Achieve Kyoto Targets

This paper reviews the role of internal European Union (EU) policies and measures in implementing the target for greenhouse gas mitigation in the Kyoto Protocol. It starts with a discussion of the EU Burden Sharing Agreement, which distributes the target between Member States. This leads to a review of the appropriate level of implementation of policies, i.e. at the EU level or Member State level. There is a role for the flexible mechanisms of the Protocol, particularly emission permit trading, in complementing Member State policies at the EU level. The implementation is to be done against the background of three major factors which may have an important bearing on the policies: the probable long-term requirement of substantial reductions in greenhouse gas emissions a changing structure of energy markets, following liberalisation of the gas and electricity markets EU enlargement to include economies in transition with the potential for further substantial reductions in emissions.The paper concludes with a discussion of ancillary benefits of the policies that may be substantial and a summary of the position as regards the "unfinished business" of the Protocol to be discussed at the Conference of the Parties in the Hague in November 2000.     

The impact of human rights principles on extradition from Canada and the United States: The role of national courts

Conclusion Throughout this article, the primary emphasis has been on how the courts in Canada and the United States have decided to apply international human rights standards, many of which have been incorporated into national constitutions, in extradition cases. The emphasis on national courts reflects the particular North American experience, where only limited jurisdiction in these matters exists in the relevant international forum, the UN Human Rights Committee. Accordingly, resort must be made to domestic constitutional rights.In order to give practical effect to international human rights obligations in Canada and the United States, courts can play a useful role, in addition to the role exercised by the executive branch of government. The ambit of this role depends upon the point at which judicial interference is viewed as necessary to protect fundamental rights and override considerations of international cooperation. In Canada the point has been located where there is a risk of treatment that is simply unacceptable178 or that would shock the conscience. In the United States, courts have in the past demonstrated a degree of willingness to probe into potential violations that would be expected if extradition were to be granted and that would offend a federal court's sense of decency.¹⁸⁰ However, there is dispute about the propriety of this encroachment on the rule of noninquiry. Recently, the pendulum has begun to swing toward applying the rule of noninquiry more stringently and, at present, U.S. courts play a very limited role in examining the motives behind an extradition request and the procedures or punishment that likely await an individual upon return to the requesting state.While there are many differences between the constitutional regimes of protection in Canada and the United States as compared with the multilateral treaty protection of the European Convention, there appear to be a number of parallels in interpretation and application. Continued scrutiny of the jurisprudence from both sides of the Atlantic could benefit each jurisdiction.This article was originally prepared for an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991. The views expressed herein are those of the authors themselves and do not necessarily reflect the position of the Canadian Department of Justice.B.A., University of Winnipeg 1975; LL.B., University of Manitoba 1978; LL.M., University of Toronto 1980.LL.B., University of Manitoba 1980; B.A., University of Manitoba 1986; Dip. Soc. Sci., University of Stockholm 1988; M.A., University of Toronto 1989.     

Social sciences and the evolving concept of corruption

The term corruptio appears in many languages, but behind it lie several contrasting strands of thought and language. Current political usages of corruptio--emphasizing bribery, which in turn is just one of several families of ideas to which the term has variously been attached--date from the late 18th or early 19th century, have been strongly influenced by Anglo-Saxon legal thought, and may be traced to Roman roots. But French lexicographers developed a richer and more diverse vocabulary to encompass the crimes of civil servants and judges in addition to those of the people who sought to influence them. Religion, and in particular offices within the Church, also strongly influenced the ideas and vocabulary of corruption. Ultimately, corruptio can be said to have Biblical origins and a core meaning centered around injustice. The complexity and richness of the idea of corruption, as viewed from that perspective, in often lost in the narrower and more technical usages that dominate contemporary debate and analysis.     

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.     

Distributing Adventitious Resources: The Effects of Relationship and Grouping

This study examines the effect of two variables—relationship and grouping—on the distribution of resources which are unearned, or adventitious. Strangers and acquaintances made decisions about the distribution of an adventitious resource either as individual decision makers or as members of a small group. Results indicate that acquaintances were more likely to share the resource than were strangers, and that group members were more likely to share than were individual allocators. Equality received the highest overall rating as a norm for distributing the adventitious resource. At the same time, subjects expected allocators to keep the resource instead of applying an equality distribution norm.     

Comparing the Social Service Utilization, Exposure to Violence, and Trauma Symptomology of Domestic Violence Female “Victims” and Female “Batterers”

Although some authors have suggested that women batterers may really be self-defending victims, to date, no research has been initiated to empirically support this assertion. This paper describes the design and outcomes of a research project that investigated the similarities and differences between women adjudicated as domestic violence batterers and women identified as domestic violence victims. Findings indicated group similarities in the areas of exposure to violence and social service utilization. Although both groups reported high levels of trauma symptomology, victim scores were significantly higher.     

Social control theory: The salience of components by age,gender, and type of crime

Most social control theorists do not consider definitions of delinquency problematic. Beginning with the assumption that crime is a unitary concept, researchers have combined a variety of non-normative items to create additive delinquency scales. Rarely is consideration given to whether the causes of crime differ for distinct types of criminal activity. Furthermore, the classic social control model doesnot predict that bonding variables operate differently for distinct age and gender categories. Consistent with the structuring perspective, the present research attempts to refine the social control model by specifying conditions under which the model predicts different forms of delinquency. This study examines social control theory using survey data from middle- and high-school students (N=2926). Logit regression analysis revealed that the model which best explains personal crime differs from the model which best explains property crime. Also, certain components of the model were more powerful predictors of criminal behavior for different age-gender groups. The importance of model specification is demonstrated and the implications for social control theory are discussed.     

Attempts at drug control in Colombia,Peru and Bolivia

The paper analyzes as part of a broader study the drug-control policy of the cocacocaine producing countries of Colombia, Perú and Bolivia, beginning with a short introduction of the political framework. The legal and political emphasis of this policy lies in the area of control and repression, which therefore is analysed in more detail. One can recognize a (substantial) tendency towards overcriminalisation linked to easier (procedural) possibilities of criminal prosecution and punishment (II). However, this questionable policy, when examined from a civil rights standpoint, proves to be of limited efficacy: given the continuing flow of cocaine to the US and the expanding trade to Europe, the policy can hardly pass a qualitative test considering the quantitative evidence (III). There are basically two alternatives from the viewpoint of the producing countries: the international commercialisation of coca and alternative development; from the viewpoint of the consumer countries the controlled legalisation (IV).This article is based on criminological research about the drug policies of Colombia, Peru and Bolivia, which was accepted at the end of 1992 as a doctoral thesis by the Law Faculty of the University of Munich. It attempts to summarize the substantial results of this research but is compelled, due to its limited scope, to frequently refer to previous publications (Ambos, 1993, 1994).This article was published in an earlier German version in Monatsschrift für Kriminologie und Strafrechtsreform, vol. 76, No. 4/1993, pp. 206–226, in a Spanish version in: Cuadernos de Política Criminal (Madrid) No. 53 (1994) pp. 629–667 and Revista dela Facultad de Ciencias Jurídicas y Politicas, No. 98 (1996), Universidad Central de Venezuela, Caracas, pp. 343–390. — I am indebted to Prof. Daniel Nesereko, University of Botswana for refining the English version and critial comments.