Defending <Emphasis Type="Italic">Why</Emphasis><Emphasis Type="Italic">Law</Emphasis><Emphasis Type="Italic">Matters:</Emphasis> Responses to Commentaries

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge (only) on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.     

A Collaboration,Not a Duel

In a number of articles published in LG, advocates take on the appearance, in readers' eyes, of lone fighters for truth, law, and justice in the courts. There is no other party on whom a defendant can depend for defense of his legal rights. The picture that emerges is that of the defense counsel as an "adversary" in the case, conducting a struggle over the defendant with another "adversary," the procurator, the state prosecutor. In such a situation, the latter naturally seeks to incriminate, to bring about punishment of the defendant. And for him this is, after all, easy, for behind him is the entire powerful system of the procuracy with all its organizational and technical resources!     

HIV: getting action from our political leadership

In this commentary on David Patterson's article on "Political Commitment, Governance, and HIV/AIDS," Justice Michael Kirby of the High Court of Australia reflects on how HIV/AIDS mobilized him and others in positions of power. He concludes that we are engaged not in a war, but in a great civil struggle, and that we have a moral duty to do what we can in this struggle.     

Post-secular Messianism Against the Law: Judith Butler on Walter Benjamin and ‘Sacred Life’

This essay focuses on Judith Butler’s configuration in Parting Ways: Jewishness and the Critique of Zionism (2012a) of sacred life from the mystical motifs that traverse Walter Benjamin’s writings as the pivot of an anti-identitarian ethics committed to non-violent resistance. To gain critical leverage on Butler’s post-secular stance, my analysis turns to Talal Asad’s ‘Redeeming the “Human” Through Human Rights’ chapter from Formations of the Secular (2003), where he enunciates a disparity between a ‘pre-civil state of nature’ and the notion of ‘inalienable rights’ that informs the subject’s rights under secular law. In underscoring the secular state’s inability or refusal to ascribe sacredness to ‘real living persons’ over and against ‘“the human” conceptualized abstractly, or imagined in a state of nature’ as presumed by natural law, Asad indirectly articulates what is at stake in Butler’s explication in Parting Ways of Benjamin’s ‘Critique of Violence’. In this context, Butler unpacks Benjamin’s remarks about the sixth commandment’s non-coercive disposition and the inner struggle its provisional applicability prompts. A conception of ‘sacred life’ crystallizes through Butler’s emphasis on the open-endedness of this struggle, which encourages us to abandon a solipsistic investment in our own suffering in the process of acknowledging its eternally transient rhythm. I argue that Butler supplements this motif by drawing upon Hannah Arendt’s grounding of the political in cohabitation. My contention is that while ‘sacred life’ forms the backbone of Butler’s affirmation of civil disobedience, Arendt empowers Butler’s ethics to transcend Benjamin’s Jewish-messianic melancholy by radicalizing the passivity that refracts it.     

Revolutionizing Academic Activism: Transpraxis,Critical Pedagogy,and Justice for a People Yet to Be

One strain of thought that is both consistent with and an amplification of academic activism (Belknap in Criminology 53(1):1–22, 2015) is the critical criminological literature on transpraxis. As a theory of change, transpraxis advances a thesis on the dialogical and relational pedagogy of mutual struggle, of shared being and becoming. In addition, this literature critiques the dominant philosophy of human risk management and the current culture of captivity politics in which the struggle for transformative (i.e., interdependent and collective) change is “finalized.” We argue that, in the present era, processes of humanness and expressions of culture de-vitalize (e.g., homogenize, normalize, territorialize) this existence. In so doing, humanness and culture tend toward Hegelian reaction-negation dynamics, thereby forestalling and/or foreclosing justice for an awaiting people. Accordingly, this article outlines the dimensions of transpraxis as theory, explains how revolutionary academic activism necessitates a critical pedagogy for a people yet to be, and it reconceives the educational terrain of criminological activism as the pedagogy of becoming. We argue that the transpraxis properties of this pedagogy facilitate revolutionary academic activism and further the radical potential of transformative justice. This activism and potential exist for the multitude.     

H. G. Wells's The Time Machine and the “Odd Consequence” of Progress

The Time Machine of H. G. Wells stands as one of the foundational works of science fiction. It is a true product of its time, a reflection of the fast pace of technological development and social change that makes a romance of the ideology of advancement for its own sake. But between the lines of its “adventure” plot, we find evidence of another, more complex story being told. Wells's work is plagued by ambivalence about the outcome of social and scientific progress—the selfsame progress that gave birth to the time machine in the first place. The Time Machine, in short, is preoccupied by an anxiety about a catastrophe just around the corner, not one born of global war or political turmoil but rather of the absence of turmoil, of need, of struggle. The idea and possibility of fiction itself becomes entangled in this problem of the everyday catastrophe, as it nearly suffocates under the conditions of the utopian society which it creates.     

走向家产身份制——简论中国社会分层秩序的演变及其问题

在中国应变性变革过程中,社会分层格局越来越向着一种家产身份制的方向演变.毛泽东时代的结束并不意味着原有身份格局的简单解体.身份化的过程贯穿于利益竞争的始终,参与了市场化背景下社会分层秩序的建构.这一过程不仅对个人利益的得失有着重要影响,而且决定了社会演变的性质以及由此带来的各种问题.     

Imperialism and the Crisis of Bourgeois Municipal Self-Government

The role of the imperialist state as bastion of the capitalist system and implement of international reaction has grown tremendously under the conditions of the general crisis of capitalism. This state assimilates the new features of imperialism that have arisen under the impact of imperialism's inherent contradictions and of its efforts to survive and adapt to the struggle between the two systems and to the revolution in science and technology. State regulation of capitalism (regulation which responds to the interests of big capital), the offensive against bourgeois democracy, and the intensification of repression (combined with implanting reformist illusions and attempting to "integrate" the workers' movement within the framework of capitalism) serve as means for the self-preservation of contemporary capitalism. (1)     

Is it unethical to offer predictions of future violence?

An examination of the nature, foundation, and consequences of predictive testimony about future violence does not support the assertion, sometimes heard, that such testimony is necessarily unethical. Certain types of predictive testimony about future violence may have adequate scientific support. Moreover, society does not require certainty about future violence in order to restrict various liberties. Proper performance of an evaluation related to certain types of predictive testimony can provide an adequate foundation for the testimony. Finally, a consideration of the consequences of legal proceedings that restrict liberty does not support the conclusion that predictive testimony is necessarily ethically improper merely because it uses probabilities that create the potential for a significant number of false-positive legal decisions. Therefore, we would not advise psychology, psychiatry, or the courts to conclude that predictions of dangerousness as a class are unethical.This paper was supported in part by funding from the John D. and Catherine T. MacArthur Foundation Research Network on Mental Health and the Law. The authors wish to thank Alexander Greer, John Monahan, Stephen Morse, and Ed Mulvey for their helpful comments on an earlier draft.     

Differentiating Factitious from Malingered Symptomatology: the Development of a Psychometric Approach

Psychometric symptom validity assessment is becoming increasingly part and parcel of psychological and neuropsychological assessments. An unresolved and rarely addressed issue concerns the differentiation between factitious and malingered symptom presentations: present-day symptom validity tests can assess whether an examinee presents with noncredible symptomatology, but not why an examinee does so. We explored this issue by developing the Symptom and Disposition Interview (SDI); a symptom validity test that incorporates strategies intended to gauge internal incentives associated with factitious disorder. The merits of the SDI were explored and compared to a traditional symptom validity test (the Structured Inventory of Malingered Symptomatology) in two analogue studies, each with factitious and malingering conditions (n = 24–30 per condition) and a clinical control group (n = 34, n = 40). Overall, the results were positive: The SDI was as effective in detecting feigned symptom presentations as a traditional symptom validity test and superior in differentiating factitious from malingered symptom presentations. We conclude that the SDI is not ready for clinical use, but that psychometric approaches to the assessment of factitious symptomatology, such as the SDI, appear sufficiently promising to warrant future research.     

Tension, compression, and shear: directions, stresses, and outcomes of health care cost control

"Control" of health care costs is often portrayed as a struggle between external, "natural" forces pushing costs up and individuals, groups, and societies trying to resist the inevitable. This picture is false. Control includes strenuous efforts by some to raise costs, and by others to resist those increases, and/or to transfer costs to someone else. But all such forces originate in the purposes and interests of individuals and groups. Health care cost control is a struggle among conflicting interests over the priorities of a society, and claims of "inevitability" are simply part of the political rhetoric of that struggle. International experience supports certain conclusions. First, there is no basis for the claim that limits on expenditure growth must threaten the health of (some members of) a society. Second, there is a substantial variety of experience with cost control. Failure in the United States is often presented as evidence of the impossibility of control, but most other countries have succeeded. Finally, control requires the direct confrontation of interests, with substantial build-up of stress. Advocates of expansion are more successful if they can transform compressive forces into efforts to shift the burden onto someone else. Pressures from providers in every country for "privatization" and/or payment by users reflect this recognition of economic interest.     

Interrelations Between Local Soviets and Law Enforcement Agencies

The question of interrelations between local soviets and law enforcement agencies is of both general theoretical and practical importance for the intensification and development of the struggle against criminal and other antisocial phenomena. The Political Report of the CPSU Central Committee to the Twenty-seventh Party Congress voiced the demand "to steadfastly raise the responsibilty of law enforcement and other agencies, to strengthen state arbitration and the legal services in the soviets and in the national economy, and to improve the legal education of the population. The use of the entire force of Soviet laws in the struggle against crime and other legal infractions, so that people in every population center feel the concern of the state for their peace and inviolability, so that they be assured that not a single law breaker will escape the punishment he deserves, is an unceasing task."¹     

Does Mandatory Diversion to Drug Treatment Eliminate Racial Disparities in the Incarceration of Drug Offenders? An Examination of California’s Proposition 36

Objective

This paper addresses previous shortcomings in the literature on racial disparities in incarceration for drug offenders by taking advantage of a change in sentencing policy in California and a rich administrative dataset that is able to create a sample of comparable White and Black offenders.

Method

We use a nonparametric propensity weighting approach to identify similarly situated White and Black male offenders charged with drug-related offenses. We combine this approach with a difference-in-differences model to estimate the effect that a change in California sentencing law for convicted non-violent drug offenders had on racial disparities in prison and drug treatment dispositions.

Results

We find substantial reductions in the probability of a prison sentence after the policy change, but not differentially for Blacks. Blacks remain more likely to go to prison than similarly situated Whites after the policy, although the policy does lead to more referrals to treatment for Blacks.

Conclusions

This paper shows that even after comparing Blacks and Whites in similarly situated contexts that racial disparities in prison commitments remain after sentencing law changes that mandate diversion to drug treatment. The results suggests that addressing racial gaps in the commitments to state prisons will likely require more than shifting the eligibility of drug convictions for prison, as accumulated criminal histories are the primary driver of prison sentences. This means that expanding diversion options from prison alone will not reduce the racial gap in commitments to prison for drug offenses more than incrementally.

     

Prohibition of Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment: Some Remarks on the Operative Solutions at the European Level and their Effects on the Member States. The Case of Italy

This paper analyzes European measures against torture and inhuman or degrading treatment or punishment in order to verify their effectiveness, especially in terms of the values that are actually being protected. First, it examines the distinction between the external and internal action of the European Union, highlighting ways in which the EU appears to be more attentive to combat practices of torture in third countries than to domestic incidents and the proposals to legalize torture made at a political level in some Member States. Then, it examines the European Court of Human Rights’ ruling in the Cestaro versus Italy case, focusing specifically on the fact that Italy was in breach of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the framework does not recognize torture as a crime and does not provide instruments of deterrence to effectively prevent the execution and the recurrence of such acts. Currently, the Italian Parliament is discussing a draft amendment to the Criminal Code and aims at introducing the concept of torture as a crime; however, in light of the comments made by the European Court of Human Rights, this project questions whether the proposed solution will be able to prevent a repeat of events similar to those that occurred in 2001 after the G8 Summit in Genoa.     

Is Gun Violence Contagious? A Spatiotemporal Test

Objectives

Existing theories of gun violence predict stable spatial concentrations and contagious diffusion of gun violence into surrounding areas. Recent empirical studies have reported confirmatory evidence of such spatiotemporal diffusion of gun violence. However, existing space/time interaction tests cannot readily distinguish spatiotemporal clustering from spatiotemporal diffusion. This leaves as an open question whether gun violence actually is contagious or merely clusters in space and time. Compounding this problem, gun violence is subject to considerable measurement error with many nonfatal shootings going unreported to police.

Methods

Using point process data from an acoustical gunshot locator system and a combination of Bayesian spatiotemporal point process modeling and classical space/time interaction tests, this paper distinguishes between clustered but non-diffusing gun violence and clustered gun violence resulting from diffusion.

Results

This paper demonstrates that contemporary urban gun violence in a metropolitan city does diffuse in space and time, but only slightly.

Conclusions

These results suggest that a disease model for the spread of gun violence in space and time may not be a good fit for most of the geographically stable and temporally stochastic process observed. And that existing space/time tests may not be adequate tests for spatiotemporal gun violence diffusion models.

     

How Can the Word “Cow” Exclude Non-cows? Description of Meaning in Dignāga’s Theory of <Emphasis Type="Italic">Apoha</Emphasis>

Dignāga’s theory of semantics called the “theory of apoha (exclusion)” has been criticized by those who state that it may lead to a circular argument wherein “exclusion of others” (anyāpoha) is understood as mere double negation. Dignāga, however, does not intend mere double negation by anyāpoha. In his view, the word “cow” for instance, excludes those that do not have the set of features such as a dewlap, horns, and so on, by applying the semantic method called componential analysis. The present paper aims to prove this by referring to the fragments quoted by Jinendrabuddhi and Siddhasenaga?i. Dignāga logically proves that the denotation of the referent Q by the word “P” cannot be derived from the joint presence (anvaya) of “P” with Q. Instead, he derives it from the joint absence (vyatireka) of “P” with the nonexistence of Q. Anyāpoha is nothing but verbal vyatireka. Componential analysis is used for describing what is to be excluded. Dignāga draws taxonomic hierarchies of words based on their customary use, and assumes componential analysis to operate in the background of the hierarchies formed in semantic fields, stating that a general term is restricted to having the same reference with one of its specific terms insofar as the former is connected (yukta) with the characteristics of the latter’s referent. Moreover, he states that a proper name also denotes its referent by excluding those that do not have the cluster of a certain number of qualities.     

Are Immigrants and Their Descendants Discriminated against in the Danish Criminal Justice System?

The study presents Danish data from 2000 showing disparities between persons with a Danish background and persons with a foreign background regarding their treatment in the criminal justice system. Persons with a foreign background are more likely to be arrested in relation to a charge, they are more likely to be remanded in custody without subsequently being convicted, and they are more likely not to be convicted when charged with an offence. Controlling for a number of factors regarding the suspect and the crime does not eliminate the disparities. A number of possible explanations are discussed.1 ¹The results of this study were presented at the Second European Society of Criminology Conference in Toledo in 2002. We are grateful to two anonymous referees for their valuable comments.      

Can “disciplined passion” overcome the cynical view? An empirical inquiry of evaluator influence on police crime prevention program outcomes

Objectives

Investigate the degree and nature of influence that researchers have in police crime prevention programs and whether a high degree of influence is associated with biased reporting of results.

Methods

Meta-analytic inquiry of experimental and quasi-experimental studies (n?=?42), drawn from four Campbell Collaboration systematic reviews of leading police crime prevention strategies: problem-oriented policing, ??hot spots?? policing, ??pulling levers?? policing, and street-level drug enforcement.

Results

Larger program effects are not associated with studies with higher involvement on the part of the evaluator (e.g., assisting in strategy design, monitoring implementation, overcoming implementation problems).

Conclusions

This study does not find support for the cynical view, which holds that researchers have a personal stake in the program or are pressured to report positive results. Importantly, the evaluator??s involvement in the implementation of the program may be a necessary condition of successfully executed police experiments in complex field settings.     

Faculty Entrepreneurs and Research Productivity

In this paper, we analyze the research productivity of faculty entrepreneurs at 15 research institutes using a novel database combining faculty characteristics, licensing information, and journal publication records. We address two related research questions. First, are faculty entrepreneurs more productive researchers (“star scientists”) compared to their colleagues? Second, does the productivity of faculty entrepreneurs change after they found a firm? We find that faculty entrepreneurs in general are more productive researchers than control groups. We use multiple performance criteria in our analysis: differences in mean publication rate, skewness of publication rate, and impact of publications (journal citation rate). These findings bring together previous work on star scientists by Zucker, Darby, and Brewer [Zucker, L. G., Darby M. R., &; Brewer M. B. (1998). The American Economic Review, 88, 290–306.] and tacit knowledge among university entrepreneurs by Shane [Shane, S. (2002). Management Science, 48, 122–137.] and Lowe [Lowe, R. A. (2001). In G. Libecap (Ed.) Entrepreneurial Inputs and Outcomes. Amsterdam: JAI Press, Lowe, R.A. (2006). Journal of Technology Transfer, 31(4), 412–429]. Finally, we find that faculty entrepreneurs’ productivity not only is greater than their peers but also does not decrease following the formation of a firm.