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.     

“Does Contain” vs. “Does Not Contain”: Does it Matter which GMO Label is Used?

An analytical framework where heterogeneous consumers are imperfectly informed about product content is used to investigate the welfare effects of a public labeling system. Although a mandatory label that reads Does Contain or one that reads Does Not Contain genetically modified organisms (GMOs) provides information for both the labeled and the unlabeled goods, there is no reason why these labels should cause the same welfare effects. This paper shows that the two labels imply different distortions due to the associated cost of labeling. It is shown that the label Does Contain should be used if the ratio of consumers with a strong reluctance for consuming GMO goods to indifferent consumers is high, while the label Does Not Contain should be used if this ratio is low. Given the findings, the authors argue that current labeling differences in various countries need not be the result of protectionist trade regulations.     

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.     

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.     

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.     

“Who made the code in the first place?”: Delinquency and justice in an American Indian community

This paper examines the emergence of official categories of delinquency and a formal system for the legal processing of youth on one American Indian reservation. The creation of the legal code, Children's Court and Juvenile Detention Center, and the ongoing activities of these agencies are placed in the context of the larger social system of the reservation and the history of federal policies toward Indian peoples. Through in-depth interviews, participant observation, case file review, and the analysis of existing statistics, perceptions of delinquency and justice and trends in the legal processing of adolescents in this community are explored. The implications of this imposed system of law and justice for this community are discussed.     

Selective Incapacitation Revisited

The term incapacitation is an important criminological concept that implies that the offender's capacity to commit new crimes is to be concretely obstructed or reduced through confinement. The purpose of selective incapacitation is to select those particularly prone to violence and to incapacitate them. The paper presents a critical analysis of the risk prediction enterprise. The paper addresses the accuracy of prediction, the ethics of prediction, and in particular the research culture within which research on prediction occurs.     

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.     

Interviewing Preschoolers: Comparisons Of Yes/No and Wh- Questions

This study investigated the influence of question format on preschool-aged children's errors, their response accuracy, and their tendency to say I don't know when given non-misleading questions in a neutral, unbiased context. Children (3 to 5 years old) participated in a craft-making session that included a staged accident with two experimenters differing in gender and appearance; the environment also had several distinctive features. One week later children were interviewed about actions, participants, and environment; questions were yes/no format with the veridical response yes (yes questions), yes/no format with the veridical response no (no questions), and specific wh- format questions. Question format substantially influenced children's responses: they were most likely to make errors if asked no questions, and were unlikely to answer either yes/no question with I don't know. In contrast, children spontaneously and frequently said I don't know to wh- questions about content they did not recall (environment), but not about content that was well recalled (actions). Implications of question format for reliability of eyewitness testimony by preschoolers are discussed.     

The Nature of Real,Implanted, and Fabricated Memories for Emotional Childhood Events: Implications for the Recovered Memory Debate

A central issue in the recovered memory debate is whether it is possible to remember a highly emotional incident which never occurred. The present study provided an in-depth investigation of real, implanted, and fabricated (deceptive) memories for stressful childhood events. We examined whether false memories for emotional events could be implanted and, if so, whether real, implanted, and fabricated memories had distinctive features. A questionnaire was sent to participants' parents asking about six highly emotional, stressful events (e.g., serious animal attack) which the participant may have experienced in childhood. Next, across three sessions, interviewers encouraged participants (N = 77) to recover a memory for a false event using guided imagery and repeated retrieval attempts. In the first interview, they were asked about one real and one false event, both introduced as true according to their parents. In two subsequent interviews, they were reinterviewed about the false event. Finally, after the third inquiry about the false event, participants were asked to fabricate a memory report. Results indicated that 26% of participants recovered a complete memory for the false experience and another 30% recalled aspects of the false experience. Real, implanted, and fabricated memories differed on several dimensions (e.g., confidence, vividness, details, repeated details, coherence, stress). These findings have important implications for the debate over recovered and false memories.     

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.     

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.     

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.     

Psychology,law, and the black community

Summary The present paper presented key applications of psychology and the law to the black community, embracing both civil and criminal law and legislation. The breadth of its focus preluded a more in-depth treatment of other areas relevant to black people which include issues related to psychiatric emergencies and involuntary hospitalization, child custody, and right-to-treatment litigation in prison and mental health facilities. In focusing attention on these applications and areas for activity, hopefully, I have not presented an unrealistic depiction of a responsive, socially sensitive, legal system capable and willing to exercise its powerful tools in the interest of the black community. To the contrary, there is considerable literature that identifies the historic role of the legal system in the enactments of laws to institutionalize and cement slavery, its failure to aggressively protect constitutional and civil rights of blacks, in imposing penalties differentially to blacks and whites in the criminal justice system, and more recently, conspiracies of law enforcement officials to deprive blacks of basic civil rights (Bell, 1975; Burns, 1973; Higgenbotham, 1973). The legal system, rather than being an effective instrument for justice and positive social changes, has often been a major source of racism. Thus, any meaningful attempts by lawyers or behavioral scientists in the interest of black people cannot ignore the racism that is embedded in the fabric of the legal profession and the behavioral sciences. Particular aspects of the law with significant social-psychological dimensions are: the cultural inertia, the archaicness of the law due to its roots in English common-law, historic and contemporary racism, conservatism associated with the principle of stare decisis, judicial elitism, and the substitution of administrative and judicial discretion for overt racism. Thus, in order for the legal system, or the field of psychology, to be reponsive to the needs of blacks and other oppressed groups, they must eradicate racism and injustice in their own ranks.Traditionally law has functioned as the hand maiden of the propertied class in our society. So it was to be expected that lawyers in the legislative halls, lawyers on the bench and lawyers in the executive branch of government would combine their talents to perpetuate by law this peculiarly American doctrine of racism predicated upon a claimed color inferiority.     

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.     

Retributivism,Consequentialism, and the Intrinsic Goodness of Punishment

Retributivism is commonly taken as an alternative to a consequentialist justification of punishment. It has recently been suggested, however, that retributivism can be recast as a consequentialist theory. This suggestion is shown to be untenable. The temptation to advance it is traced to an intrinsic good claim prominent in retributive thinking. This claim is examined, and is argued to be of little help in coping with the difficulties besetting the retributive theory, as well as clashing with a desert claim equally central to that theory.     

Testamentary competency

This paper examines the development of the doctrine that restricts testation to competent persons, and the use of expert testimony in implementing that doctrine. Since 1870 the leading articulation of this doctrine has been Lord Cockburn's Rule, which among other things requires that the testator knew the natural objects of his bounty at the time the will was made. The facultative theory of mind underlying Lord Cockburn's Rule is consistent with the contemporary, functional approach to competency to make medical decisions taken by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Where expert testimony, based on training in the behavioral sciences, takes a functional approach to discovering the nature of the testator's values regarding other persons, it can assist the trier of fact significantly more than the lay opinion testimony which many courts have preferred in questions of testamentary competency. The concern of commentators that courts make false attributions of testamentary competency out of a perceived need to protect the family would be lessened, and the freedom of testation promoted, if courts directed their attention, through the kind of expert testimony proposed, to the testator's psychological family, instead of the persons identified as family members in intestacy statutes.The author wishes to thank Professors John Monahan, Roberta A. Morris, and Richard J. Bonnie for their helpful critiques of an earlier draft of this paper. The author also gratefully acknowledges the research assistance of Vicki L. Epling and Paul A. Lombardo, law students at the University of Virginia.A portion of this paper was presented by the author at the 1982 Annual Convention of the American Psychological Association under the title, The Application of Psychology to Legal Problems Involving Trusts and Estates, as part of the symposium, Psychological Questions in Legal Areas Largely Unexplored by Psychologists. This symposium was proposed and organized by Professor Gary B. Melton of the University of Nebraska-Lincoln.     

What Is Forensic Psychology,Anyway?

The issue of how forensic psychology is defined has taken on a new urgency in the context of an application to have forensic psychology designated a specialty by the American Psychological Association. To provide a historical perspective, I briefly review early attempts to apply psychological concepts to legal issues, beginning with the McNaughten trial in England in 1843. I then review current conceptualizations of forensic psychology, which have either a broad focus on all psychology–law interactions or focus more narrowly on clinical applications to the legal system. Potential advantages and disadvantages of each conceptualization are briefly discussed. After touching upon the major differences in the cultures of psychology and of law, I discuss three law-related areas of contemporary controversy: use of clinically based evidence in the courtroom, recovered memories of child abuse, and the use of the criteria-based content analysis technique to evaluate children's claims of sexual abuse. Issues concerning the education and training of psychology–law scholars and practitioners are briefly surveyed. I conclude that a broad conceptualization of forensic psychology is important in terms of relevant ethical standards, but that a more narrow distinction that differentiates between clinicians and researchers or legal scholars also is useful.     

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.     

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.