Seeing Jurisdiction: Some Jurisprudential Issues Arising from Law Being ". . . All Over"

This article asks, “If law is all over, why don't we see it?” It takes seriously the fact that we see law in lawyers and buildings and police, but that there is more law out there. In this sense law is like religion, politics, and economics. It is an activity where various senses come into play. With law, we can learn to see more than we do. Jurisdiction is one of the easier areas of law to see. The article develops some of the distinctive ways we see jurisdiction and some of the ways seeing jurisdiction allows for more widespread participation in lawmaking. The article argues against our tendency to trivialize the law that we see.     

NORMLESSNESS,POWERLESSNESS, AND TROUBLE WITH THE LAW*

This paper examines the conditions under which normlessness leads to trouble with the law and the mechanisms through which social structure affects trouble with the law. Objective conditions of structural inconsistency, common in low socioeconomic positions, can lead to normlessness. The results presented here show that the association of normlessness and trouble with the law depends on whether normlessness is combined with a sense of powerlessness or with one of instrumentalism. Among persons who see themselves as powerless, normlessness is not associated with trouble with the law. Among persons who see themselves as instrumental, normlessness is associated with greater trouble with the law.     

The View from the Hill: Legislative Perceptions Of the District

This article addresses legislative perceptions of constituents' interests and develops a theory of perception that highlights the role of information accessibility in the formation of legislative offices' views of their districts. I used original data regarding health policy in the U.S. House to analyze perceptions of constituents' interests. I found that legislators do not see all constituents in their district, nor do they see the largest constituencies. Rather, legislators are more likely to see active and resource‐rich constituents. These findings provide unique evidence of the influence of money in Congress and suggest that legislative misperception is both common and systematically biased.     

古罗马奴隶法律地位还原——“奴隶是会说话的工具”说法之批判

我国学界对罗马奴隶的法律地位认识欠缺,"奴隶是会说话的工具"之滥用为其鲜明体现。通过分析"奴隶是会说话的工具"的起源,指出该论断源于特定的社会经济背景,不具有普遍说服力。在梳理优士丁尼罗马法原始文献后,得出这样的结论:奴隶在人身安全、婚姻家庭方面作为主体受保护,在宗教、特有产、继承、诉讼等方面中表现出一定的主体性,在共和到帝政的转变过程中存在承认其主体性的趋势。     

论高等教育大众化时代的质量保证

质量是学校的生命，质量保证则是学校发展的前提。在高等教育由精英阶段向大众化阶段的过渡时期，要正确理解处理规模与质量的关系，要采取对策保证大众化时代高等教育的质量。     

Do blind people see race? Social, legal, and theoretical considerations

Although the meaning, significance, and definition of race have been debated for centuries, one thread of thought unifies almost all of the many diverging perspectives: a largely unquestioned belief that race is self-evident and visually obvious, defined largely by skin color, facial features, and other visual cues. This suggests that “seeing race” is an experience largely unmediated by broader social forces; we simply know it when we see it. It also suggests that those who cannot see are likely to have a diminished understanding of race. But is this empirically accurate?I examine these questions by interviewing people who have been totally blind since birth about race and compare their responses to sighted individuals. I not only find that blind people have as significant an understanding of race as anyone else and that they understand race visually, but that this visual understanding of race stems from interpersonal and institutional socializations that profoundly shape their racial perceptions. These findings highlight how race and racial thinking are encoded into individuals through iterative social practices that train people to think a certain way about the world around them. In short, these practices are so strong that even blind people, in a conceptual sense, “see” race. Rather than being self-evident, these interviews draw attention to how race becomes visually salient through constitutive social practices that give rise to visual understandings of racial difference for blind and sighted people alike. This article concludes with a discussion of these findings' significance for understanding the role of race in law and society.     

宽严相济刑事政策的刑罚观依据

从古代社会到启蒙思想运动,再到古典犯罪学派、实证犯罪学派、犯罪社会学,人类社会关于刑罚目的与功能的刑罚观已经发生了深刻的变化。然而,长期以来,我们对刑罚的认识却存在不小的偏差,往往将刑罚作为专政的一种工具,将刑罚视为政治问题,过于强调通过刑罚手段来严厉打击“敌人”或者严重犯罪分子,而不是将刑罚视为一种科学。宽严相济刑事政策的提出,是我国在对传统刑罚观进行反思的基础上,认肯现代刑罚观的必然结果。     

Law talk: Juveniles' understanding of legal language

This article reports and discusses the findings of a study conducted at the pretrial stage in the Winnipeg juvenile court (Province of Manitoba, Canada) to determine: (1) what legal words or phrases commonly used in courtroom hearings juveniles understand; (2) whether there is a relationship between juveniles' understanding and sense of justice (fairness); (3) whether judges, lawyers, and probation officers believe that legal language affects a juvenile's understanding of the courtroom hearing; (4) what legal terms or phrases these key actors see as most important for the juvenile to understand; and (5) whether there is a relationship between what juveniles understand and what key actors see as the most important legal terms or phrases that a juvenile needs to understand. Juveniles' understanding is moderate and is confined to procedural terms. A strong relationship does not exist between what juveniles understand and the terms that key actors view as needing to be understood.     

The Recasting of Insolvency Law

Over the last decade corporate insolvency laws and processes have changed in two important ways. There has been a philosophical shift away from ex post responses to corporate crises and towards influencing the way that corporate actors manage the risks of insolvency ex ante . In addition, there has been a revision of insolvency roles so that participants in corporate and insolvency processes are increasingly encouraged to see corporate decline as a matter to be anticipated and prevented rather than responded to after the event. In this development turnaround specialists have gained a new prominence. These are changes that reflect broader social and governmental trends to audit performance more actively and to see issues in terms of needs to manage risks. Such developments are important for corporate and insolvency lawyers – they recast a host of issues within new framing assumptions and they force a re-thinking of corporate insolvency law's challenges and agendas.     

Drugpeace

A society’s conceptualization of “human nature” determines both how its people behave and their perceptions about justice. This paper contrasts societies that see humans as naturally competitive and selfish and requiring behavioral training (Skinnerian approaches to social control) with societies that see humans as naturally pro‐social and cooperative, striving to contribute (the premise of the prophets of major religions). Whereas the former rely mainly on rewards and punishments, and utilize retributive forms of justice, the latter rely more on apology, forgiveness, and restitution, with restoration of harmony as the goal of justice. The paper evaluates these two approaches in light of an image of human nature (recently developed by the author) that identifies three evolutionarily selected psychological needs that we all share: for acceptance, autonomy, and meaning. When any are denied, we tend to respond in anti‐social ways. Societies where that happens – particularly punitive authoritarian hierarchies – serve human nature less well, and are inherently unstable. Smaller, more egalitarian communities tend to evolve dialogic processes for resolving social rupture, a psychologically preferable process to coercion and shame.     

SAMSON AND DELILAH IN DIVORCE MEDIATION

Does divorce mediation pose special problems for women that it does not pose for men? This article argues that the metaphor of power imbalances that has been invoked to express this concern has not only caused those in the field to see husbands and wives in political terms, but also prevented them from seeing how women, as well as men, influence the outcome of the discussions that take place between them.     

Critical justice consciousness: Social injustice and the criminal justice system

In this essay I examine the importance of social justice to my identity and the changing interpretation of my “justice consciousness” resulting from changes in my work life. Drawing on my academic experience as well as my experience as an attorney, I describe the meaning that social justice has for me. I also examine the connections that I see between social injustice and the operation of the critical justice system.     

Chilling ISPs… when private regulators act without adequate public framework…

Self-regulation has found its adepts very early, but more academics are beginning to question its appropriateness and calling for a “hybrid regulation” as cyberspace becomes more and more an essential means of communication in everyday life. Yet, today the private sector has never been so strong within cyberspace and the chances to see the flowering of what U.S. lawyers know as public forums keep on diminishing. The success of filtering measures, the implementation is which is most of the time opaque, confirms this trend. More generally, the desire to see private powers confined in the digital environment is far from being granted. This is certainly due in part to the relative obsolescence of legal concepts that are inapt to frame the behavior of intermediaries, which do play the role of regulators. This paper thus seeks to determine and analyse the legal framework within which intermediaries act in cyberspace.     

自然法抑或实证法——理性与意志视野下的美国宪法

在看待美国宪法观念中,一种观念将美国宪法视为自然法或高级法的摹本,认为美国宪法的特征在于人类凭借理性发现和宣布了自然法或高级法;另一种观念则将美国宪法视为纯粹的人民主权的意志表达。这两种观念都存在一定的曲解:美国宪法其实和古典自然法之间存在着巨大的断裂,是一种现代自然权利体系之下的人为宪法,但这种宪法并不是未经筛选的人民意志的表达,而是理性引导之下的意志表达。美国宪法的这种特征要求当代的法律人政治家既不能神话宪法,也不能轻视宪法,而是要求将宪法视为政治科学的教材,通过理解与对话来提升理性,从而思考宪法在当代的挑战。     

The Structure of Social Practices and the Connection between Law and Morality*

In his work, Jules Coleman has held that the rule of recognition, if conceived of as a shared cooperative activity, should be the gateway through which to incorporate moral constraints on the content of law. This analysis, however, leaves unanswered two important questions. For one thing, we do not know when or even why morality becomes a criterion of legality. And, for another thing, we still do not know what conception of morality it is that we are dealing with. In this article, we will attempt to clarify in greater depth what relations there are between the social practice of law and morality. We will thus see how the cooperative nature of social practices imbues law with a moral force, and how this makes it possible to establish a “weak” connection between law and morality: To see this, we will need to single out some basic features of cooperative social practices, thus setting out a suitable framework for the view just mentioned.     

The Progression Towards Ecological Quality Standards

Environmental law still lacks coherence in many respects. Twokey areas of UK and EC law—water pollution control andbiodiversity protection—are examined to see whether itis possible to adopt more common approaches. A key developmentin pollution control law was its redirection in the last twentyyears from a largely reactive instrument towards one embeddedin the realisation of environmental quality objectives throughprecisely stated quality standards. On closer inspection, manyof these standards, though, are anthropocentric in origin. Theapproach of using the law purposively to achieve defined objectivesis much better developed in pollution legislation as comparedto the law on biodiversity protection. The latter area now needsto see a similar development in ecological quality standards,while recognising that their formulation is a significantlydifferent exercise from that of establishing environmental qualitystandards. The use of ecological quality standards in the WaterFramework Directive is commendable, but there remain substantialreservations about the criteria adopted and the underlying basisfor ecological valuation.     

Who's on the line? Policing and enforcing laws relating to mobile phone use while driving

This article investigates how laws relating to mobile phone use in cars are written, interpreted and applied in real life. It explores how regulations are imposed, the difficulties that are encountered in terms of enforcement, and how laws have been policed and tested in court. By focusing on the socio-legal context in Victoria and drawing upon international comparisons, we see that stories of enforcement highlight the unique and particular questions asked of existing legal systems by motorists using a mobile phone. Moreover, in describing the problematic process of developing and implementing legal regulations, we see that road rules are struggling to adapt to a transitional technology and that there are significant obstacles to enforcing the laws.     

THE TRANSFORMATION OF TROUBLE: Police Certification and State Compensation of Sexual Assault Claims

This article is concerned with the transformation of private troubles into social and legal problems. It is argued that this transformation process involves a micro-and macro-politics of claims-making. Data are presented on police certification and state compensation of sexual assault claims in a mid western state. The largest urban area in this state is distinguished by the collective claims-making of antirape activists, and by the resulting presence of a sexual assault treatment center, which we expected would reduce the influence of racial characteristics on police certifications of innocence, while correspondingly increasing the influence of police certifications on the success of compensation claims. Our results confirm the above expectations. An implication of our findings is that black victims of intraracial sexual assaults are more likely to see their compensation claims succeed, and to see their troubles recognized as social and legal problems in those settings where macro-level antirape efforts have been institutionalized in treatment and/or advocacy centers. More generally, our findings suggest that the transformation of private troubles into social and legal problems can be contingent on collective claims-making in the context considered.     

亚洲犯罪被害人补偿法律制度比较研究

制约我国建立犯罪被害人补偿制度的一个重要因素是"经费"不足。但在亚洲如日本、韩国、菲律宾、印度、我国香港、台湾等国家和地区,针对犯罪被害人补偿的法律制度均已逐渐建立和发展起来。这对我们无疑是一个启示:经济的因素不是绝对的,关键是要建立一套行之有效的补偿机制。     

What Would Mary Douglas Do? A Commentary on Kahan et al., “Cultural Cognition and Public Policy: The Case of Outpatient Commitment Laws”

Involuntary outpatient commitment is a highly controversial issue in mental health law. Strong supporters of outpatient commitment see it as a form of access to community-based mental health care and a less restrictive alternative to hospitalization for people with severe mental illness; vocal opponents see it as an instrument of social control and an unwarranted deprivation of individual liberty. Kahan and colleagues apply the theory of “cultural cognition” in an empirical study of how cultural worldviews influence support for outpatient commitment laws among the general public and shape perceptions of evidence for these laws’ effectiveness. This article critiques Kahan et al. and offers an alternative perspective on the controversy, emphasizing particular social facts underlying stakeholders’ positions on outpatient commitment laws.