Agency Accountability Strategies After Liberalization: Universal Service in the United Kingdom, France, and Sweden

Liberalization of key network industries is often said to reduce accountability by undermining its traditional mechanisms. Liberalization, others say, promotes accountability by creating new channels and mechanisms. This article suggests that neither view is sufficiently nuanced. Accountability comes in many forms, and the question is less "how much" accountability there is, but what form it takes. And accountability will take different forms in relation to different issues, even within the same organization. Examining accountability in relation to the provision of universal service in electricity and telecommunications, this article demonstrates that in the regimes studied, agencies were generally accountable for providing universal service by deferring, to the maximum possible extent, to political actors or stakeholders. However, when faced with an expert technical question—in this case, determining the costs of the universal service—agencies stressed their professional judgment and transparency. This observation supports a wider hypothesis concerning the conditions under which a variety of agency accountability strategies may be adopted.     

Perceiving Self-Interest: Power,Ideology, and Maintenance of the Status Quo

We explore the perception of self-interest based on the social position of the person making a persuasive argument, and whether the argument challenges peoples representation of the social world. More self-interest is perceived when it is made on behalf of a small rather than a large group (Experiment 1), comes from a low status rather than a high status group (Experiment 2), and when it benefits an outgroup more than an ingroup (Experiment 3). We show that attempting to change the political status quo, no matter whose interests it may serve, leads to perceptions of self-interest (Experiment 4). We discuss these findings in terms of beliefs, social ideologies, and attitudes, and argue that perceptions of self-interest are often a marker of the defense of the status quo from perceived threats.     

Non-sex offenders display distorted thinking and have empathy deficits too: A thematic analysis of cognitions and the application of empathy

Abstract

It is generally assumed that empathy acts to disinhibit behaviour that could be perceived as detrimental to others, and as a result is a common feature of offender treatment programmes. The present research hypothesised that empathy in all populations is both a situational and a selective process that is ultimately governed by self-interest, and further, that it is the nature of the self-interest that distinguishes individuals rather than a general empathy deficit per se. Empathic processes were observed in a non-offending population in a personal situation normally regarded as evocative of empathy: infidelity. Thematic analysis of data from individuals who reported being faithful or unfaithful to their partners revealed five dominant themes: vulnerable predisposition, emotional motivators, rational emotive decision making, avoiding cognitive dissonance and lack of remorse. The themes all revealed how individuals employed cognitive strategies, which were managed by self-interest that functioned to create cognitive states devoid of empathy.     

Emotion,Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations

This article explores the role of emotion in the capital penalty‐phase jury deliberations process. It is based on the qualitative analysis of data from ninety video‐recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury's sentencing process, and deployed in penalty‐phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion‐based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.     

Power,Policy and Co-ordination in Law Reform: a Civil Servant and Town Planning Law, 1929–1930

The process of turning policy into legislation has been the subject of intense debates with some emphasising 'pressure groups', some pointing to Members of Parliament and others stressing the importance of civil servants with their own strong beliefs. This article argues that a particular type of civil service role has not been explored: we need to look at the civil servant who co-ordinates the process of reform. He or she starts with no particular commitment but seeks to provide a framework for legislation which can respond to contrasting and, on some occasions, even mutually inconsistent ideas. Co-ordination is in itself a form of power, and its significance can be seen in the compromises and gaps which are often found in government legislation and which are frequently the product of the co-ordinating role with its search for some minimal level of agreement and 'workable' drafts. The case-study for this analysis of law-making is the strained attempt to reform planning law in the years 1929–1932 in such a way as to make the law an instrument for preserving the countryside and improving housing and city conditions. It was a major attempt at social engineering and highly contentious for contemporaries. It is the essence of this type of law-reform that it simultaneously changes past law and, because it is an administratively co-ordinated compromise, it also produces problems which demand further reform within a few years.     

The Preference for Indirect Harm

We presented subjects pairs of hypothetical scenarios. The action in each scenario harmed some people in order to aid others. In one member of the pair, the harm was a direct result of the action. In the other member, it was an indirect byproduct. Subjects preferred the indirect harm to the direct harm. This result could not be fully explained in terms of differences in judgments about which option was more active, more intentional, more likely to cause harm, or more subject to the disapproval of others. Taken together, these findings provide evidence for a new bias in judgment, a tendency to favor indirectly harmful options over directly harmful alternatives, irrespective of the associated outcomes, intentions, or self-presentational concerns. We speculate that this bias could originate from the use of a typical but somewhat unreliable property of harmful acts, their directness, as a cue to moral evaluation. We discuss the implications of the bias for a range of social issues, including the distinction between passive and active euthanasia, legal deterrence, and the rhetoric of affirmative action.     

Statement of Ralph G. Steinhardt,Professor of Law,before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary,U.S. House of Representatives

Conclusion The Alvarez-Machain decision demonstrates that there is no simple division between international law, on the one hand, and domestic or constitutional law, on the other. It is a domestic matter that U.S. citizens are suddenly vulnerable to reciprocal exercises of power by foreign states. It is a domestic matter if the decision compromises the international cooperation on which the drug war depends. It will certainly be no consolation to those whose lives depend on winning that war that the case involved a single, relatively obscure treaty with a single foreign country. It is a constitutional matter if the Court will no longer exercise independent judgment in the interpretation of the supreme law of the land or will view as optional agreements the rest of the world considers comprehensive and binding.And as we reflect on the importance of treaties in such areas as trade or-especially after President Yeltsin's visit last week-arms reduction, it becomes clear that treaties-though international in origin-are usually domestic in their impact. The Supreme Court's disposition in Alvarez-Machain seems radically at odds with this nation's long-term, sophisticated self-interest in assuring the domestic sanctity of international agreements.This statement was presented in a slightly altered form to the Subcommittee on June 22, 1992. Professor Steinhardt is Associate Director of the International and Comparative Law Program at the National Law Center, George Washington University, Washington, D.C., U.S.A.; B.A., Bowdoin College 1976; J.D., Harvard University 1980.Professor Steinhardt appeared with the American Civil Liberties Union Foundation of Southern California in its representation of Dr. Alvarez-Machain in the U.S. Court of Appeals for the Ninth Circuit and in the Supreme Court of the United States.     

Egocentric Ethics

Ethical judgments are often egocentrically biased, such that moral reasoners tend to conclude that self-interested outcomes are not only desirable but morally justifiable. Although such egocentric ethics can arise from deliberate self-interested reasoning, we suggest that they may also arise through unconscious and automatic psychological mechanisms. People automatically interpret their perceptions egocentrically, automatically evaluate stimuli on a semantic differential as positive or negative, and base their moral judgments on affective reactions to stimuli. These three automatic and unconscious features of human judgment can help to explain not only why ethical judgments are egocentrically biased, but also why such subjective perceptions can appear objective and unbiased to moral reasoners themselves.     

Indirect Crimes

Both law and morality routinely distinguish between direct wrongs of causing harm oneself and indirect wrongs of contributing to another’s harmful actions. This article asks whether this distinction matters for the purposes of a theory of criminalisation. It argues that, in some respects, the distinction matters less than is often supposed: generally, the potential future actions of others have at least some relevance to what we ought to do. However, it is morally significant that criminal liability for indirect wrongdoing can make our freedom to do valuable things contingent upon others’ failure to comply with their moral obligations. This raises substantial concerns of autonomy and fairness that tell against the creation of some – but by no means all – indirect crimes.     

The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?

The Supreme Court determined that a ‘fresh approach’ was needed in an attempt to bring some clarity to the issue of the eligibility for compensation of those who have had their convictions quashed by the Court of Appeal. The definition that the majority agreed upon was that ‘a new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’. This article argues that the judgment suffers from a failure to consider the purpose of the legislation; that it is unclear whether the test is normative or historical and that this presents a particular problem in cases relating to the Northern Ireland conflict. The Court focuses on the guilt of the appellant and excludes from its consideration any notion of culpability by the state, which is a cause for concern.     

欠缺行为能力成年人保护的法律重构

本文所述欠缺行为能力成年人的含义与我国民法规定不同,它是指认知和判断能力完全障碍或者有一定的障碍的人,并不以成年精神病人为限。那些除成年精神病人（我国司法解释将其扩展为痴呆病人）外的欠缺意思行为的人,如酗酒成性、吸毒成瘾、不履行任何家庭责任的人,因为其理智判断幼稚,理性程度低下,缺乏控制自己行为能力,社会生活经验很不成熟,对较复杂的行为尚不能预料其应有的后果,不能有效地保护自己和相关家人。因此,法律应给予特别保护。     

法律推理中的独特思维倾向及其可能的误区

法律推理是一种特殊的推理。它既具有推理的一般特征,也有自身的独特性。法律推理的独特性主要表现在推理主体的思维方式上。在法律推理中,人们根深蒂固地具有三种思维倾向:规则取向、概念取向与自治取向。这些思维倾向是在长期的法律推理活动中形成的,因此在法官、律师、学者等专业或经常从事法律推理的主体身上最为凸显。正因如此,它们有时也被称为法律人的思维方式或法律(人)思维。一般情况下,这些思维倾向使得相关主体更有可能得出正确的裁判结论,有助于说明判决的合法性来源,并在一定程度上增进了限权、平等、法治等对于现代社会来说极为重要的政治道德理想。但如果在一些相关理论问题上缺乏正确认识,它们也可能会给法律事业造成危害。为了推动法律领域内的知识增长与实践进步,我们要对这些思维倾向有充分、自觉的认识,一方面要承认它们的存在并给予应有的尊重;另一方面也要注意防范可能的风险。     

Components of Legal Concepts: Quality of Law,Evaluative Judgement,and Metaphorical Framing of Article 8 ECHR

This paper looks at the use of metaphor and its effect on the interpretation of the ‘quality of law’ in Art. 8 cases of the European Court of Human Rights. It demonstrates the Court's reproduction of specific metaphorical frames ‐ a finding consistent with the use of metaphor in judgment experiments in cognitive linguistics. The Court employs metaphors conceptually coherent with those used in their cited precedent, in their representation of the successful pleadings within their judgments and insists (implicitly) on different metaphors in dissent. This paper argues that the use of congruent metaphors may be indicative of metaphor as a contributing factor in how judges reason. In the least, it is a significantly understudied phenomenon and this paper provides evidence for the salience of its approach for understanding judicial reasoning.     

行政诉讼应增加判决方式

在某些行政程序中,由于取得证据的对抗机制不充分,行政机关依法获取的证据在事实上并不真实或不完整,不能保证其认定事实的正确性。对于此类具体行政行为,为兼顾保障行政相对人的合法权益和支持行政机关依法行政,应当确认行政机关依法行政,同时撤销错误的具体行政行为。现有判决方式不能满足行政审判的此类需要,应增加这种新的判决方式。     

Legal Subjectivity and the ‘Right to be Forgotten’: A Rancièrean Analysis of <Emphasis Type="Italic">Google</Emphasis>

This article discusses the right to be forgotten. The landmark Google ruling of the European Court of Justice gave this ambiguous right new weight and raised several urgent questions. This article considers what kind of person is presupposed and constructed when somebody invokes their right to be forgotten. The aim is to engage in an experimental reading of the ruling in the framework of contemporary political theory, namely, the philosophy of Jacques Rancière. The analysis shows that even though the right to be forgotten is a new legal and rhetorical instrument, there are good grounds for being critical of its underlying logic and sceptical of the novelty thereof. The judgment can be understood as a reiteration and consolidation of the same impotent human rights thinking that law often seems forced to contend itself with, no matter how radical our intentions may be.     

遵循司法规律，构建公诉案例指导制度

案例指导制度是在近年来颇受国内学界、司法界关注的一项司法革新制度，然而研究和实践的重点多聚焦在审判领域。公诉案例指导制度是检察机关在公诉领域为充分行使检察权而提出的全新尝试。相比较审判案例指导制度，公诉案例指导制度建立在合法性、合理性、典型性原则的基础上，符合我国检察机关的法律监督职能和双重领导体制要求。在这三个原则的指导下，从案例指导主体、案例的遴选标准、案例的遴选程序及确定、体例、发布方式等五个方面进行具体构建，并明确了公诉案例指导制度的效力和具体适用过程。     

Playing fair: fairness beliefs and health policy preferences in the United States

Conventional wisdom suggests that the best way to persuade Americans to support changes in health care policy is to appeal to their self-interest - particularly to concerns about their economic and health security. An alternative strategy, framing problems in the health care system to emphasize inequalities, could also, however, mobilize public support for policy change by activating underlying attitudes about the unfairness or injustice of these inequalities. In this article, we draw on original data from a nationally representative survey to describe Americans' beliefs about fairness in the health domain, including their perceptions of the fairness of particular inequalities in health and health care. We then assess the influence of these fairness considerations on opinions about the appropriate role of private actors versus government in providing health insurance. Respondents believe inequalities in access to and quality of health care are more unfair than unequal health outcomes. Even after taking into account self-interest considerations and the other usual suspects driving policy opinions, perceptions of the unfairness of inequalities in health care strongly influence respondents' preferences for government provision of health insurance.     

盗窃犯罪及其刑法适用研究

盗窃犯罪数量多、危害大。当前的盗窃犯罪表现出新的特点,有其复杂的原因,应当加强防范。适用刑法,首先应当认真分析、正确认定;其次应当量刑轻缓、罪刑相当。