Is There a Case for Strict Liability?

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories.     

Theories of Rights: Is There a Third Way?

Some important recent articles, including one in this journal,have sought to devise theories of rights that can transcendthe longstanding debate between the Interest Theory and theWill Theory. The present essay argues that those efforts failand that the Interest Theory and the Will Theory withstand thecriticisms that have been levelled against them. To be sure,the criticisms have been valuable in that they have promptedthe amplification and clarification of the two dominant theoriesof rights; but their upshot has been to reveal the need forthe improvement, rather than the abandonment, of those theories.     

Trial and Error at the End of Life--No Harm Done?

English law gives the competent patient the right to refuselife-saving medical treatment, either contemporaneously or inan advance directive, and a physician commits a battery whentreating a patient who validly refused treatment. However, withregard to the details of a physician's liability, many questionsremain unanswered, and it is not at all clear under what circumstancesa patient's tort action for unwanted life-saving treatment willsucceed, and what remedies would be available to the patient.The article suggests that a physician should be liable in batteryfor administering life-saving treatment, even if he/she haddoubts about the validity of the patient's treatment refusal,unless a defence of reasonable mistake can be established. Furthermore,in case of a battery which resulted in keeping the patient alive,the patient should not only be able to claim nominal damages,but general and special damages, including mental and physicalpain and suffering caused by the prolongation of the patient'slife, should equally be available.     

Is the Magic Still There? The Use of the Heckman Two-Step Correction for Selection Bias in Criminology

Issues of selection bias pervade criminological research. Despite their ubiquity, considerable confusion surrounds various approaches for addressing sample selection. The most common approach for dealing with selection bias in criminology remains Heckman’s [(1976) Ann Econ Social Measure 5:475–492] two-step correction. This technique has often been misapplied in criminological research. This paper highlights some common problems with its application, including its use with dichotomous dependent variables, difficulties with calculating the hazard rate, misestimated standard error estimates, and collinearity between the correction term and other regressors in the substantive model of interest. We also discuss the fundamental importance of exclusion restrictions, or theoretically determined variables that affect selection but not the substantive problem of interest. Standard statistical software can readily address some of these common errors, but the real problem with selection bias is substantive, not technical. Any correction for selection bias requires that the researcher understand the source and magnitude of the bias. To illustrate this, we apply a diagnostic technique by Stolzenberg and Relles [(1997) Am Sociol Rev 62:494–507] to help develop intuition about selection bias in the context of criminal sentencing research. Our investigation suggests that while Heckman’s two-step correction can be an appropriate technique for addressing this bias, it is not a magic solution to the problem. Thoughtful consideration is therefore needed before employing this common but overused technique.

There's Nothing New in Dying Now: Will Welfare Attorney Decision Making at End of Life Make a Real Difference?

Advance care planning is a way to express value‐based preferences in order to guide future treatment decisions following loss of decision‐making capacity. It aims to ensure that one's critical values continue to influence healthcare decisions, particularly at end of life. The Mental Capacity Act 2005 permits adults with capacity to appoint welfare attorneys to act as their proxy decision‐makers following loss of capacity. A focus group study was used to explore the views and perceptions of lawyers and health professionals to attorney decision making at end of life. Whilst participants gave a guarded welcome to the introduction of healthcare and welfare attorneys, potential challenges were identified, based upon professional norms and expectations. A shared consensus was that the realization of the full potential of proxy decision making was likely to be a theoretical, rather than real, benefit. Opinions were divided on elemental tenets such as prospective autonomy, best interests, and the potential for conflict.     

Is There a Crime Drop in Western Europe?

Combining data from police statistics and crime victim surveys, this article analyses the evolution of crime in Western Europe from 1988 to 2007. The results show that there is no general drop in crime. Property offences and homicide have been decreasing since the mid 1990s, while violent and drug offences have increased during the period under study. These trends highlight the limits of the explanations to the crime drop in the United States, which are based on the premise of a correlation in the evolution of all offences. The drop in property offences seems related to changes in the socioeconomic situation in Europe as well as to increases in security measures in households, and the reinforcement of private security. The increase in violent offences can be explained by the combination of several factors, including changes in youth’s free time provoked by the development of the Internet, changing demographics, and the rise of episodic heavy alcohol consumption and street gangs.     

Public-College Student-Athletes and Game-Time Anthem Protests: Is There a Need for a Constitutional-Analytical Audible?

National-anthem-related protests among NFL players have revealed complexities associated with symbolic counter-speech tied to American symbols of patriotism. For public-college officials and coaches, who are bound by the First Amendment, the handling of game-time anthem protests may reverberate beyond the court of public opinion. Because uniformed collegiate student-athletes occupy a constitutional limbo-land in which they are distinguishable both from members of the general adult population and their non-athlete student peers, the traditional framework for evaluating limits on their game-time political counter-speech may prove unwieldy. This article presents an alternative constitutional-analytical approach that contemplates the unique status of collegiate student-athletes and the nature of competitive teams. Within this potential framework, administrator-imposed limits on anthem protests would be reviewed strictly. Courts considering coach-imposed limits on anthem protests, however, might opt for a less rigid form of review that allows for a more direct balancing of interests.     

Exploring the Taxometric Status of Psychopathy Among Youthful Offenders: Is There a Juvenile Psychopath Taxon?

Several recent studies have examined the taxometric status of psychopathic and antisocial traits in adult samples, almost all of which have supported a dimensional model. The three studies examining whether psychopathic traits among youths are best conceptualized as a discrete latent class (or taxon) or as a dimensional construct, however, have provided conflicting results. In a sample of 723 delinquent youths who completed two self-report measures of psychopathic traits, results across taxometric procedures provided uniform support for a dimensional model. Additionally, analyses comparing putative dichotomous and dimensional classification models in terms of predicting relevant criterion measures (e.g., delinquent behavior, substance abuse, and hostility) indicated superior validity for the dimensional model. Implications for research, policy, and practice are reviewed.     

The Dynamics of Staying and Leaving: Implications for Battered Women’s Emotional Well-Being and Experiences of Violence at the End of a Year

Much of the discourse on intimate partner violence assumes that women must end their relationship with their abusive partner to increase their safety and emotional well-being. Few studies, however, exist to support this assumption. Equally problematic, those studies that do exist have failed to distinguish women who leave and stay out from those who leave only to later return. Comparing emotional well-being and experiences of violence for 206 low-income, primarily Black battered women following different relationship trajectories, this longitudinal study found that women both separated from and together with their partner for the entire year of the study fared best at the end of that year compared to women “in” and “out” of the relationship over time. Beyond challenging common assumptions, these findings highlight the importance of considering the larger context within which an individual instance of leaving occurs.

Is there a Need for a European Criminology?

Readers were invited in Issue 4, 2000 to give their comments on the subject of European criminology. The Editors also invited some scholars on a personal title. The comments, ranging from 1,200 to 2,000 words are presented in alphabetical order. The comments are written by: Rosemary Barberet, Josine Junger-Tas, Martin Killias, H.-J. Schneider, Alenka élih, Henrik Tham, Bas van Stokkom and Lode Walgrave. Together they offer a view on the ideas and different views on European criminology.     

A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?

In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally. This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.