Risk,Precaution, Responsibility,and Equal Concern

Systemic risks are risks produced through interconnected non‐wrongful actions of individuals, in the sense that an individual's action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks are fairly distributed and well regulated. James argues that fairness in this context requires taking reasonably available precautions ensuring for each risk‐bearer a favourable ratio of expected benefits over expected losses. In sections 2 and 3 we argue that such a conception of fairness applies but only on the condition that the systemic risks created are irreversible risks and that the general background conditions of justice are imperfectly fair. When risks are reversible, compensatory justice can correct for unfairness in risk imposition. Where risks are irreversible, compensatory justice necessarily fails, giving rise to a collective responsibility to regulate fairly ex ante. Additionally, where background conditions of justice are fully fair and the systemic risk is well understood, risk bearers can be said to have consented to the systemic risk. If they are not fair, we argue that the primary political obligation should lie in fixing the fairness of the backgrounds of justice. A related reason for addressing the general background conditions of fairness is that James’ account of fairness in systemic risk imposition encounters a baseline problem. If expected risks and benefits are calculated again an unfair historic background condition, systemic risk imposition would not be fully fair. Section 4 shows why differences in evidentiary uncertainty as to probability and levels of harm and effective responses require a normatively appropriate response in the form of additional precautions. We show that the evidentiary standards set for risk‐based cost‐benefit analysis have a connection with deontology because they express a postulate of equal treatment in formal terms. Systemic risks can have different possible degrees of epistemological certainty due to factors of social and natural origin, such as more available research funding or higher degrees of complexity for some systemic risks but not others. These differences have to be mitigated by taking even greater precautions in difficult‐to‐research systemic risks.     

Habermas,Feminism, and Law: Beyond Equality and Difference?*

In this paper, I argue that Habermas' proceduralist model of law can be put to feminist ends in at least two significant ways. First, in presenting an alternative to the liberal and welfare models of laws, the proceduralist model offers feminism a way out of the equality/difference dilemma. Both these attempts to secure women's equality by emphasising women's sameness to men or their difference from men have placed the onus on women to either find a way of integrating themselves into existing institutions or to confront the so‐called question of women's difference. The proceduralist model renders this dilemma irrelevant. Instead, it proceeds from the fact of sexual difference; a fact that produces competing and conflicting needs and interests that require interpretation by both men and women. This, I argue, marks a change in the very way we conceptualise the so‐called problem of women's difference, insofar as the question is no longer framed in these terms. Second, I argue that this deliberative process over the interpretation of conflicting interests affects a fundamental shift in the nature of legal institutions themselves, insofar as law is no longer a vehicle for promoting male interests.     

The Place of Religious Arguments in Civic Discussion

I shall consider whether morality requires citizens of democratic societies to advance secular reasons in public debates on political questions. Is it wrong to give purely religious reasons in political discussion? I shall argue that the moral acceptability of public religious arguments that are not supported with secular reasons depends on the political context we are discussing, and that often there is nothing wrong with using religious considerations. I shall also discuss the so‐called shared premises requirement in political argumentation. The overall aim of the paper is to clarify intuitions concerning the ideals of public reason on the one hand, and the commitment to religious liberty on the other.     

The Professionalization of Public Accounting: A Social Dilemma Perspective

This study uses a social dilemma model of auditing and a model of cooperative regulatory enforcement to provide a framework within which the evolution of self-regulation in the U.S. accounting profession is studied. From a social dilemma perspective, individual public accounting firms are best off, in a single period sense, by providing a low quality audit product, which is defined in terms of the degree of auditor acquiescence to managers' accounting method discretion. However, firms' collective welfare is maximized by high quality auditing. The cooperative regulatory model employed is premised on the existence of a plausible government threat of punishments and invasive regulations, which motivates self-regulation in an industry. We argue that prior to enactment of the securities acts, public accounting firms faced a social dilemma in which there were limited incentives for high quality auditing either voluntarily or through the establishment of self-regulation. The securities acts provided a plausible threat to which the accounting industry responded by implementing self-regulation in order to avoid invasive and costly government regulation. After the emergence of the accounting profession, there occurred a long period of cooperative regulation with the SEC. Management discretion over accounting methods increased during this time period and audit quality correspondingly decreased, suggesting possible inefficient capture of the SEC. Evidence of an evolution towards a tripartite form of regulation appeared in the 1970s when the SEC and public accounting began to be critically reviewed by Congress. From this time to the present, new regulatory threats have motivated a series of self-regulatory responses by public accounting to improve audit quality.     

Public Reason,Neutrality and Civic Virtues

In this paper I argue that political liberalism is not the “minimalist liberalism” characterised by Michael Sandel and that it does not support the vision of public life characteristic of the procedural republic. I defend this claim by developing two points. The first concerns Rawls's account of public reason. Drawing from examples in Canadian free speech jurisprudence I show how restrictions on commercial advertising, obscenity and hate propaganda can be justified by political values. Secondly, political liberalism also attends to the identity, and not just the interests, of its citizens. It attempts to cultivate certain virtues of character. But it does so in a way that does not entail the acceptance of a comprehensive or perfectionist doctrine. Rawls's defence of neutrality of aim does not mean the state should be neutral towards all the views its citizens espouse. I conclude that political liberalism shares little with the doctrine Sandel claims is embedded in American law.     

The European parliament and the co‐decision procedure: A reassessment

In this paper, I reassess the co‐decision legislative procedure introduced by the Maastricht Treaty on European Union. Specifically, I examine the dispute as to whether co‐decision enhanced or diminished the European Parliament's influence over EU law making. Employing a combination of formal analysis of the different stages of the procedure and evidence from its actual operation, I argue that Garrett and Tsebelis’ claim that co‐decision reduces Parliament's legislative powers is both theoretically and empirically unsupported. The implications for the Parliament's position within European politics are evaluated in the conclusion.     

Long‐Term Change and Stability in House Voting Decisions: The Case of the Minimum Wage

Although members of Congress exhibit considerable stability in their voting decisions on similar, recurring issues, members' long‐term voting histories reveal evidence of systematic instability as well. I argue that members reverse positions in predictable ways when the vote history loses value as a decision cue, and I present empirical evidence for this behavior in the context of the highly salient and regularly repeated House decisions on increasing the federal minimum wage. The empirical findings suggest that reversals of member positions are related to institutional, electoral, and constituency factors. I conclude by discussing the importance of these findings to understanding congressional decision making and representation.     

A Question of Guilt

Abstract. This article inquires into the social function of guilt, especially collective guilt, and the implications thereof for collective violence and collective memory. The focus is on the relationship between collective violence and collective memory in countries that have experienced cultural trauma, defined as a dramatic loss of identity and meaning, a tear in the social fabric. Analyzing the dynamics—the mechanisms and processes—of remembering and forgetting such trauma, I argue that the idea of collective guilt is essential for making sense of collective violence and collective memory. Specifically, I show that collective violence requires collective action; that collective action produces collective guilt; that collective violence generates perceptions—and misperceptions—of collective guilt; and that collective memory is formed, deformed, and transformed by perceptions—and misperceptions—of collective guilt. The article uses illustrative data from a variety of cases to illuminate these dynamics. It concludes by explaining why understanding these dynamics is imperative for responding to historic injustice in the twenty‐first century.

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Policy,Practicalities, and PACE s. 24: The Subsuming of the Necessity Criteria in Arrest Decision Making by Frontline Police Officers

PACE, as amended by the Serious Organised Crime and Police Act 2005, establishes a complex framework of factors that police officers must consider during arrest decision making. Officers must possess a reason to arrest, it must be necessary to arrest for that reason, and they must give at least a ‘cursory consideration’ to alternatives. Based on a four‐year ethnographic study of frontline officers from two forces in Northern England, we argue that the 2005 reforms have not achieved their aims. The new regime tasks officers with undertaking a complex legal assessment prior to arrest, but officers are often confused about the necessity criteria which, moreover, is typically a minor consideration in contrast to demanding practical and policy pressures. This means that unlawful and non‐human‐rights‐compliant arrests continue to be regularly made and, equally significantly, many suspects are escaping the criminal justice system because officers are not considering arrest alternatives.     

From Marx to Market: Lawyers,European Law,and the Contentious Transformation of the Port of Genoa

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.     

Friendship, Identity, and Solidarity. An Approach to Rights in Plant Closing Cases

Abstract. My focus is on the problem of plant closings, which have become increasingly common as the deindustrialization of America has proceeded since the early 1980s. In a well‐known article, Joseph William Singer proposed that workers who sued to keep a plant open in the face of a planned closure might appropriately be regarded as possessing a reliance‐based interest in the plant that merited some protection. I seek to extend this sort of argument in two ways. In the first half of the paper, I point to the way in which “tacit obligation” emerges in friendship between persons in the absence of explicit commitments. Employers and employees are of course not as such friends. But I argue that the development of tacit obligations binding friends provides a useful analogy for understanding the growth of similar tacit obligations binding plant owners to workers and local communities. In the second half, I draw on Margaret Radin's work on property and identity to ground a related argument. I suggest that the potential contribution of plants—and the traditions and networks of relationships they help to create and sustain—to the identities of workers and communities provides reason for at least some legal protection of employee and community interests.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

Differential social organization, collective action, and crime

This article elaborates and extends Sutherland’s [Principles of criminology (4th ed.), Lippincott, Philadelphia, Sutherland (1947)] concept of differential social organization, the sociological counterpart to his social psychological theory of differential association. Differential social organization contains a static structural component, which explains crime rates across groups, as well as a dynamic collective action component, which explains changes in crime rates over time. I argue that by drawing on George Herbert Mead’s [Mind, self, and society. University of Chicago Press, Chicago, Mead (1934)] theories of symbolic interaction and social control, we can conceptualize organization in favor of, and against, crime as collective behavior. We can then integrate theoretical mechanisms of models of collective behavior, including social network ties, collective action frames, and threshold models of collective action. I illustrate the integrated theory using examples of social movements against crime, neighborhood collective efficacy, and the code of the street. A portion of this chapter was presented at the Annual Meetings of the American Society of Criminology, Toronto, Canada, November 16–19. The research upon which this paper was based was supported in part by grants from the National Science Foundation (SES-0004323) and the National Institute on Drug Abuse (R01DA18148). The funding agencies bear no responsibility for the analyses and interpretations drawn here. James F. Short, Jr. and Joachim Savelsberg generously provided comments on an earlier draft.     

Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out‐group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out‐group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in‐group/out‐group status.     

Justice,Fairness, and World Ownership

It is a central tenet of most contemporarytheories of justice that the badly-off have aright to some of the resources of the well-off.In this paper, I take as my starting point twoprinciples of justice, to wit, the principle ofsufficiency, whereby individuals have a rightto the material resources they need in order tolead a decent life, and the principle ofautonomy, whereby once everybody has such alife, individuals should be allowed to pursuetheir conception of the good, and to enjoy thefruits of their labour in pursuit of suchconception. I also endorse the value offairness, whereby the right person orinstitution makes the decision as to whether tobring about justice.I show that justice and fairness can besatisfied only if we all enjoy a combination ofprivate and collective rights over the world.In making that case, I shall argue that the setof ownership rights I advocate differs fromreadily available conceptions of restrictedprivate ownership in two important respects.First, it is such that in some circumstances,two individuals or more can have control rightsover the same property at the same time, not,as is standardly the case in legal systems, bycontracting with one another (through gifts andjoint purchase), but simply on grounds ofjustice. Second, it allows that, if necessary,property-owners be expropriated from theirproperty without compensation.     

Justificatory Liberalism and Same‐Sex Marriage

Supporters of Justificatory Liberalism (JL)—such as John Rawls and Gerard Gaus—typically maintain that the state may not coerce its citizens on matters of constitutional essentials unless it can provide public justification that the coerced citizens would be irrational in rejecting. The state, in other words, may not coerce citizens whose rejection of the coercion is based on their reasonable comprehensive doctrines (i.e., worldviews). Proponents of the legal recognition of same‐sex marriage (SSM) usually offer some version of JL as the most fundmental reason why laws that recognize marriage only if it is a union between one man and one woman are unjust. In this article I argue that the application of JL in support of legal recognition of SSM does not succeed because the issue under scrutiny—the nature of marriage—is deeply embedded in, and in most cases integral to, many (if not most) citizens’ reasonable comprehensive doctrines. Thus, I argue that because of the effects and consequences of the legal recognition of SSM, it results (or will result) in a violation of JL against dissenting citizens.     

Public Reason and Religion: The Theo-Ethical Equilibrium Argument for Restraint

Most public reason theorists believe that citizens are under a ‘duty of restraint’. Citizens must refrain from supporting laws for which they have only non-public reasons, such as religious reasons. The theo-ethical equilibrium argument purports to show that theists should accept this duty, on the basis of their religious convictions. Theists’ beliefs about God’s nature should lead them to doubt moral claims for which they cannot find secular grounds, and to refrain from imposing such claims upon others. If successful, this argument would defuse prominent objections to public reason liberalism. This paper assesses the theo-ethical equilibrium argument, with a specific focus on Christian citizens. I argue that Christians should seek theo-ethical equilibrium, but need not endorse the duty of restraint. I establish this in part through examining the important theological concept of natural law. That discussion also points to more general and persistent problems with defining ‘public reasons’.     

Self‐Determination and Sovereignty over Natural Resources

This article makes the normative case for a differentiated approach to the sovereignty of states over natural resources. In the first half of the article, drawing on the example of the Yasuní‐ITT‐Initiative, I will argue that countries commit a moral wrong when they exploit natural resources for their own benefit (and to the detriment of the climate), but that they have the moral right to do so given the current structure of the international system. In the second half of the article, I address the question of whether states' rights over natural resources can be justified. Central to my argument will be the distinction between “control rights” and “income rights.” Only control rights, I will argue, can be justified as inherently tied to collective self‐determination.     

Feminism,Religion, and Shared Reasons: A Defense of Exclusive Public Reason

The idea of public reason is central to political liberalism’s aim to provide an account of the possibility of a just and stable democratic society comprised of free and equal citizens who nonetheless are deeply divided over fundamental values. This commitment to the idea of public reason reflects the normative core of political liberalism which is rooted in the principle of democratic legitimacy and the idea of reciprocity among citizens. Yet both critics and defenders of political liberalism disagree over whether or not the idea of public reason permits citizens to appeal to their comprehensive conceptions of the good in public deliberation over matters of basic justice. Our aim in this paper is to provide a defense of an exclusive idea of public reason, and at the same time we aim to dispel the underlying concerns of two prominent criticisms of the idea of public reason—the concern of alienation from the political process, as expressed by religiously oriented critics, and the concern over women’s equality, as expressed by feminist critics. We argue that inclusive accounts of the idea of public reason are not consistent with political liberalism’s core commitments. Further, we claim, inclusive accounts of the idea of public reason deepen feminist concerns. We think that, properly understood, an exclusive account of the idea of public reason can address feminist concerns about political liberalism and avoid alienating (reasonable) religious persons in an unacceptable way. Thus, we conclude that an exclusive account of the idea of public reason is our best hope for reconciliation. For comments and suggestions on earlier versions of this paper, we thank Andrew Altman, H.E. Baber, Andrew Jason Cohen, Steven Daskal, Peter Gratton, Blain Neufeld, Linda Peterson, Rodney Peffer, Kevin Timpe, Matt Zwolinski and David Cummiskey. An earlier version of this paper was presented at a Pacific Division Meeting of the American Philosophical Association; we thank audience participants for helpful feedback. We would also like to thank an anonymous referee for Law and Philosophy, we believe the article is much improved as a result of his/her suggestions.     

Congressional Performance,Incumbent Behavior,and Voting in Senate Elections

Conventional wisdom suggests that individual members of Congress have no real incentive to act in ways that might improve public evaluations of their collective body. In particular, the literature provides no clear evidence that public evaluations of Congress affect individual races for Congress, and little reason to expect that voters would hold specific individuals responsible for the institution's performance. We suggest that this conventional wisdom is incorrect. Using multiple state‐level exit polls of Senate voting conducted by Voter News Service in 1996 and 1998, we arrive at two key findings. First, we find that evaluations of Congress do have a significant effect on voting within individual U.S. Senate races across a wide variety of electoral contexts. Second, we find that punishments or rewards for congressional performance are not distributed equally across all members, or even across members of a particular party. Instead, we find that the degree to which citizens hold a senator accountable for congressional performance is significantly influenced by that senator's actual level of support for the majority party in Congress, as demonstrated on party votes.