Children's Law: Toward a New Realism

The realist approach that has dominated American jurisprudence has long had especially great acceptance in regard to children's issues. Ironically, however, decision making on such topics has seemed to be particularly unlikely to be informed by careful assessments of social reality. Symbolism has prevailed over pragmatism. Psycholegal research on children's issues has also often been misdirected. Application of the Convention on the Rights of the Child may point the way to more psychologically minded children's law.     

Toward a Typology of High-Risk Major Stressful Events and Situations in Posttraumatic Stress Disorder and Related Psychopathology

The diagnosis of posttraumatic stress disorder (PTSD) was introduced in 1980 with the publication of the Diagnostic and Statistical Manual of the American Psychiatric Association, Third Edition (DSM-III). DSM-III put forward a novel syndrome consisting of intrusive, avoidance/numbing, and arousal symptoms as distinctive psychopathology following exposure to traumatic events. The traumatic stressors, although expanded in later editions published in 1987 (DSM-III-R) and 1994 (DSM-IV), focus on life-threatening events and situations. However, at least 12 studies, most of them recent, have found associations between the PTSD symptoms and the PTSD symptom syndrome with stressors, such as unemployment and divorce that would not qualify, even in the broadened DSM-IV diagnosis, as traumatic stressors. These findings challenge the basic assumption on which the PTSD diagnosis is based, the assumption that exposure to life-threatening stressors is the primary cause of a unique set of stress response symptoms. The purpose of this paper is to show how to confront this challenge by developing a typology of stressful situations and events that can be tested systematically for their relation to the PTSD symptom syndrome and other relevant variables. The typology includes but is not limited to the types of situations and events defined as "traumatic" in the DSMs.     

Toward a New Standard of Attorney Disqualification

In litigation, judges often disqualify attorneys who violate American Bar Association ( aba ) disciplinary standards. Many practitioners, judges, and scholars are growing increasingly hostile to these disqualifications. In this article the author criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. He argues that the remedy of disqualification should only rarely be used, even when it is clear that an aba disciplinary standard has been violated. He criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. And he canvasses the Second Circuit's development of a new standard of disqualification—the trial taint test—as well as some recent developments that undercut that standard.     

Right,Crime, and Court: Toward a Unifying Political Conception of International Law

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.     

Justice and Feelings: Toward a New Era in Justice Research

In this special issue, the relationship between feelings and justice and its consequences are highlighted. Five articles discuss the role that affect, feelings, and emotions play in justice processes across a variety of social settings. In the present introductory article, the position of past and present justice research in relationship to these topics is briefly reviewed. In addition, reasons are outlined to show why a focus on these issues may be pivotal for a better understanding of social justice and how this may pave the way for a new, more process-oriented era in social justice research, focusing more on “hot” cognitive aspects as they pertain to social justice concerns.     

Four Models of Political Representation: British MPs and the Use of ICT

This paper tests four models of political representation in the UK Parliament: the traditional, party, representative and tribune. Each involves a different usage of the Internet in order to fulfil a particular role. A rational choice approach emphasises the utility of the party model, utilising information and communication technologies to reinforce existing patterns within the political system. An empirical study suggests that the party model is the most applicable to the UK Parliament. Few MPs utilise the Internet in a way consistent with the other three models. If innovative use is to be made of the Internet, it may be at the institutional level rather than at the level of the individual MP.     

Advancing Wrongful Conviction Scholarship: Toward New Conceptual Frameworks

As wrongful conviction scholarship grows, some scholars have suggested that existing research on miscarriages of justice lacks theoretical grounding and methodological sophistication, arguing that the use of social science theory may help to better understand wrongful convictions. In this article, we suggest that it may be useful to draw upon conceptual frameworks found in traditional criminal justice studies, discuss what such approaches might suggest about miscarriages of justice, and begin to explore the questions or topics they may encourage interested researchers to pursue. Furthermore, through this broad theoretical lens, we can see that criminal justice theory is present, at least implicitly, in some existing innocence literature, and that making such theoretical connections more explicit may help to move the study of wrongful conviction into the mainstream of criminal justice research.     

A Political Economy Model of Workers Representation: The Case of Union Elections in Spain

In this article we present a political economy model to analyse the effects of union elections. Union elections are the prerequisite for participating in collective bargaining and they are a unique Spanish institution for union recognition. We apply standard political economy assumptions to model the union elections in order to understand their influence on the dynamics of the unemployment rate. Although union elections give the right to vote to virtually all workers, we show that insider power exists and that it introduces a hysteresis effect on the unemployment rate. In addition, the model shows how the date of the union elections can amplify the business cycle. An empirical analysis confirms the main predictions of the model.JEL Classification: K31, J51, E24     

The Legal Culture of Political Representation: Evolution and Balance of Its Current Situation Within Democracies

This work studies the issue of political representation from the perspective of a specific legal culture, the exercise of political rights in the context of the occidental democratic system, a concept that has undergone a profound evolution to the present day. The essential aspects for an analysis of this progression are voting, decision making, and the relationship between representatives and their constituents. Overall, the phenomena making up the crisis of representation have been explained as a result of changes that have affected the operation and structure of modern states constituted as representative democracies. The idea is that a well-functioning representative system comes primarily from the form of government and electoral system in which it develops.     

Child Abuse in a Disciplinary Context: A Typology of Violent Family Environments

The objectives of this study were to identify and validate types of violent family environments based on child abuse in a disciplinary context. The study is original in that it simultaneously takes into account the cognitive and behavioral dimensions of the parental role as it relates to the degree of family violence in a child??s life. Cluster analyses were performed on a representative sample of 3,148 families. The Abusive profile applied to families who reported at least one severe assault on a child within the past year. This profile also had the highest levels of domestic violence, psychological aggression, and corporal punishment. The Harsh profile is nevertheless similar to the Abusive profile, despite the fact that these families reported no severe assault. The key difference is the lower score levels: the attributes are the same, but less intense. The Nonabusive profile accounted for the families with the lowest rates of domestic and parental violence, together with a negative attitude towards corporal punishment and a heightened awareness of the consequences of violence. Although the families who matched the Paradoxical profile reported very little violence, they are the least aware of the consequences of violence and the most in favor of corporal punishment. The four profiles were replicated with another cluster analysis performed on an independent representative sample of 2,465 families. Then the profiles were compared with regard to the variables used to create the clusters and other variables theoretically associated with the appearance of maltreatment. These validation methods enhance the credibility of the proposed typology.     

Many Spiders,One Worldwide Web: Towards a Typology of Internet Regulation

This article examines emerging Internet law and policy from a comparative, international perspective. This complex, multi-cultural, global, information, communication, commercial and cultural platform that the Internet has become is gradually being adapted to the political, economic and cultural realities and interests of specific countries around the world. The United States, where the Internet was created, has advocated an Internet regulatory regime based on self-regulation. Though this principle has also been endorsed by some international agencies and non-governmental organizations, Internet self-regulation is neither desirable nor universally applicable. After a survey of patterns of Internet law and policy around the world, a five-part typology of Internet regulation based on the multiple political, cultural, social and economic contexts and realities around the world is proposed. They are: (1) Internationalist, (2) Neo-merchantilist, (3) Culturist, (4) Gateway and (5) Developmentalist. An attempt is made to show that these different regulatory regimes arise out of differential attitudes toward the Internet around the world.     

Foucault's Expulsion of Law: Toward a Retrieval

This essay argues that there is an important sense in which Foucault gets law wrong—that the pursuit of Foucault's own objectives had the unintended consequence of inhibiting a fruitful interrogation of the place of law in modernity. His immediate concern was with the emergence of distinctive manifestations of modern power that constitute a new configuration, the disciplinary society. The most distinctive feature of his account of the historical emergence of modernity was his expulsion of law from modernity. This "expulsion of law" is found in his metahistorical thesis that law constituted the primary form of power in the premodern era, and that although law lingers on in the doctrine of sovereignty, it is supplanted by discipline and government as the key embodiments of modernity.
The essay proposes an exercise in retrieval, a "retrieval of law," to recuperate much in Foucault's thought that is suggestive for our understanding of law's role in the constitution of modern society. It rejects Foucault's opposition of law and discipline and makes use of his treatment of government and governmentality toward that end. It argues that a more adequate grasp of the place of law in modernity can be developed by establishing that law and discipline are complementary and characteristically combine in the ubiquitous presence of regulation as the mark of the modem condition.     

Judicial Independence and Political Representation: Prussian Judges as Parliamentary Deputies, 1849–1913

The outrageous history of German judges during the Third Reich should not so structure historical research as to distract historians from examining their role in the nineteenth century. Prussian judges played an important role in electoral politics by serving as parliamentary deputies between 1849 and 1913. This essay poses and answers two questions: What was the political, legal, and social setting that led to judges sewing in parliament? And, why did their number decline after 1877? Theoretical discourses of separation of powers, construction of a Hegelian “general estate,” and independence of the judiciary converged with administrative‐legal‐constitutional developments in Prussia begun under the absolutism of the eighteenth century and professional and personal interests of judges to bring them into parliament, often as members of the liberal opposition. But success in the liberal project of building a national state, including legal reform, professionalization, and the advent of mass politics, reduced the need and attraction for judges in parliament, resulting in a decline after the 1860s.