Laws that are Made to be Broken

Criminal laws are created to achieve various ends. These include (1) reducing the incidence of wrongdoing, and (2) holding wrongdoers responsible for their wrongs. Some criminal laws are created to further the first of these ends by means of compliance. The second end is to be furthered only if, regrettably, some fail to comply. These criminal laws are made to be followed. Other criminal laws are not created with compliance in mind. Conviction, in these cases, is no regrettable fallback. It is the primary means by which the law is to contribute to ends (1) and (2). Laws of this second kind are made to be broken. My concern in this paper is with the creation of such laws. Section 1 sharpens the contrast drawn above, and considers some arguments for enacting laws that are made to be broken. The following sections develop an argument against. Section 2 introduces what I call the identification principle. It argues that the principle is an implication of the ideal of the rule of law, and that it binds state officials who make, apply and enforce criminal laws. Section 3 argues that when laws are made to be broken, the identification principle is violated. Section 4 concludes.     

An analysis of the implementation of laws with regard to female genital mutilation in Europe

This paper presents results of a survey on legislation regarding female genital mutilation in 15 European member states, as well as the results of a comparative analysis of the implementation of these laws in Belgium, France, Spain, Sweden and the UK. The research showed that although both criminal laws and child protection laws are implemented a number of difficulties with the implementation of these laws remain. The article suggests that efforts should primarily focus on child protection measures, but also on developing implementation strategies for criminal laws, and concludes with suggestions to overcome the obstructing factors to implement laws applicable to FGM in Europe.

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Technology,property, and law

Between 1975 and 1986 forty-eight states passed laws specifically criminalizing unauthorized access to computer-based information. Thirty of these states passed their computer crime laws between 1982 and 1985. This flurry of legislative activity occurred in a climate of concern for the need to stem what was characterized as a wave of computer crime. The data presented here, however, indicate that these laws did not result in any corresponding wave of prosecutions of computer criminals. This suggests that social forces other than an instrumental need for a mechanism to prosecute computer criminals played a role in the passage of computer crime laws. Specifically, we argue that the passage of computer crime laws resulted from the need to incorporate a new form of value within the establish framework of property rights, and a desire to preserve established relationships between power and knowledge that were threatened by the emergence of computer technology. We conclude by suggesting that the study of law-making is enhanced by examining the structural bases for the motives of legislators and advocates of legal change, in addition to the motives themselves.     

Civil asset forfeiture, equitable sharing, and policing for profit in the United States

Purpose

Critics of asset forfeiture claim that forfeiture laws create financial incentives that inappropriately influence police behavior. The present study examines the relationship between measures of the financial incentive and legal burdens for civil asset forfeiture on federal equitable sharing payments to local law enforcement to determine whether police behavior is affected by different statutory incentives for forfeiture activity.

Methods

Using LEMAS and DOJ forfeiture data, this study addresses some of the limitations of previous research by using a multi-year average for forfeiture activity, an improved measure of financial incentives for law enforcement, and multiple measures of statutory burdens to law enforcement to determine the impact of forfeiture laws on forfeiture activity.

Results

Consistent with anecdotal reports and limited prior research, findings indicate that agencies in jurisdictions with more restrictive state forfeiture laws receive more proceeds through federal equitable sharing.

Conclusions

Results suggest that state and local law enforcement agencies use federal equitable sharing to circumvent their own state forfeiture laws when state laws are more burdensome or less financially rewarding to these agencies, providing additional evidence that police operations are influenced by financial incentives.     

On Justifying Punishment: The Discrepancy Between Words and Actions

This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of the same when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as “fair” in the abstract, but frequently reject them when they are instantiated in ways that support utilitarian theories. These studies reveal people’s inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.

Explaining Regulatory Non-compliance: A Survey Study of Rule Transgression for Two Dutch Instrumental Laws, Applying the Randomized Response Method

Within a rational choice framework, secondary data analysis of a survey study on compliance with two Dutch regulatory laws is carried out. Selection of explanatory variables to be considered is guided by a heuristic device, called the Table-of-Eleven. Using adapted logistic regression analysis, we show that self-reported compliance, measured by means of a randomized response procedure, can be explained in terms of benefits of non-compliance, social norms and deterrence, while knowledge and general norm-conformity have no role to play. The impact of various contributing factors turns out to be rather different in size for the two laws.     

How Large Should the Strike Zone Be in “Three Strikes and You're Out” Sentencing Laws?

So-called three strikes and you're out sentencing laws for criminal offenders have proliferated in the United States. The laws vary considerably in their definitions of what constitutes a strike. This paper adapts the classic Poisson process model of criminal offending to investigate how varying sentence lengths and definitions of what constitutes a strike affect the effectiveness and cost-effectiveness of these sentencing laws. In particular, it asks whether, by using different definitions for the first, second, and third strikes or different sentence lengths, one can make the resulting incarceration more efficient in the sense of incapacitating more crimes per cell-year served.     

Using State Child Labor Laws to Identify the Causal Effect of Youth Employment on Deviant Behavior and Academic Achievement

On the basis of prior research findings that employed youth, and especially intensively employed youth, have higher rates of delinquent behavior and lower academic achievement, scholars have called for limits on the maximum number of hours per week that teenagers are allowed to work. We use the National Longitudinal Survey of Youth 1997 to assess the claim that employment and work hours are causally related to adolescent problem behavior. We utilize a change model with age-graded child labor laws governing the number of hours per week allowed during the school year as instrumental variables. We find that these work laws lead to additional number of hours worked by youth, which then lead to increased high school dropout but decreased delinquency. Although counterintuitive, this result is consistent with existing evidence about the effect of employment on crime for adults and the impact of dropout on youth crime.

Authors’ Rights As An Instrument Of Control: An Overview Of The Ideas Of Authorship And Authors’ Rights In Socialist Yugoslavia,And How These Ideas Did Not Change To Reflect The Ideals Of The Socialist Revolution

The purpose of this paper is to show, using the example of socialist Yugoslavia, how and why authors’ rights laws were applied in a socialist regime relying on the same rhetoric of ownership and individualism that marked their use in the capitalist West. In this way, Yugoslav laws have served us as an excuse to examine the connection between rights guaranteed by the legal apparatus and a type of control over creative processes that these rights make possible. Since it is a fact that both single-party socialism and pluralist capitalism have employed the same concept of authors’ rights and authorship, it is our claim that the two systems have been and are equally interested in limiting creative freedom by means of property derived from authors’ rights. To the extent to which Yugoslav legislative, political, cultural, and ideological practice borrowed from the Soviet variety of socialism, we will consider examples from that tradition as well, treating it as the strictest incarnation of Marxism in Europe.

Engaging with the legal profession and the provision of legal aid/assistance

The state of defamation laws within the Commonwealth poses a significant threat to the right to freedom of speech, expression and information. Within the United Kingdom there is a growing movement for the reform of the procedural aspects of libel law following several high profile cases that have brought the public’s attention to a number of problems within existing libel law. ^{1 1} Significant concern surrounded the judgment in this case and the question of costs MGN Limited v the United Kingdom – 39401/04 [2011] ECHR 66 (18 January 2011). In Jamaica, criminal defamation laws are facing reform and the recommendations for change are continuing to make their way through the legislative process. The pernicious effects of libel actions are amplified within small jurisdictions and there is a serious danger that the crippling penalties on defendants as a result of such actions ‘chill’ free speech and stifle dissent. ^{2 2}Guardian editorial, ‘Press freedom: The Singapore grip’ The Guardian (17 November 2010) <http://www.guardian.co.uk/commentisfree/2010/nov/17/press-freedom-singapore-grip> The Commonwealth Human Rights Initiative (CHRI) an independent NGO working for Human Rights in the Commonwealth, presented a paper to the 2010 Meeting of Law Ministers and Attorneys General of Small Commonwealth Jurisdictions (LMSCJ) on the human rights case for libel law reform in small jurisdictions. ^{3 3}Commonwealth Human Rights Initiative, ‘Overview of Media Freedom and Defamation: The Human Rights case for Libel Law Reforms in the Commonwealth’ (LMSCJ Paper, Commonwealth, Secretariat, Marlborough House, London). This paper was produced at the London officer of CHRI – written by Frederick Cowell with research assistance from Catherine Fischl, Alix Langrounat and Sirintiya Robberts. This is a summary of the research and the paper presented at the LMSCJ meeting. The basic findings were that the presence of criminal defamation laws on the statute books and procedural aspects of civil defamations laws posed a threat to the realisation of freedom of speech and CHRI put a series of recommendations to the delegates calling for reform in these areas.     

促进稳定发展的法律类型之比较研究

现代国家的治理,主要仰赖政策与法律。促进经济与社会稳定发展是政府不可推卸的责任,由此,也促进了法律的发展,法律对促进经济与社会稳定发展有着独到的优势。现代性法律中具有促进型结构的规范类型的集合,可以概括为"促进型法"。英美法系限制干预型立法以"稳定"促进发展,大陆法系国家依法调控型立法以"鼓励"促进发展。"促进型法"具有内在的促进发展的特定规范结构,是专门促进经济与社会稳定发展的抽象性、类型化的规范概念,既有核心内核和中心体系,又有边缘结构。     

Firearm Ownership in High-Conflict Families: Differences According to State Laws Restricting Firearms to Misdemeanor Crimes of Domestic Violence Offenders

This study examines the association between state laws that prohibit firearm ownership for offenders convicted of misdemeanor crimes of domestic violence (MCDV) and firearm ownership in two-parent families with high-conflict male partners with arrest histories. Mixed effects logistic regression models applied to data from the Early Childhood Longitudinal Study-Birth cohort (n?= 5350) determined that living in a state with laws that prohibited firearm ownership for convicted MCDV offenders decreased the likelihood of firearm ownership among families with high-conflict males by 62%. The length of the time limit on firearm prohibition was correlated with incremental decreases in firearm ownership in such families, with the probability of firearm ownership among families with high-conflict males decreasing from 30% in states with no MCDV laws restricting access from firearms to 12% in states with permanent prohibition on firearm ownership. These findings have significance for public health policy aimed at decreasing intimate-partner homicide.     

冲突法之本位探讨

从冲突法的理论和实践来看,法律冲突的解决可归纳为以“私人”、“政府”和“社会”为本位三种情形。无疑,仅从法律逻辑上将无法对冲突法之本位的取舍做出完整的评估,就此,需要广泛地运用其他学科的理论。其中,依国际关系理论对这三种本位制进行分析,得出的结论是,“私人本位制”应成为各国冲突法立法的普遍选择;然而,以“私人”为本位的冲突法体系也应在有限的范围内或有限的程度上,以各种途径和方式有机地整合“政府本位制”和“社会本位制”的因素。同时,这也是健全和完善我国冲突法立法的一个重要方面。     

Ethics in the workplace

The right to request flexible working has been introduced into the UK employment laws against a background of post-fordist work practices, which already allow for employer rather than employee flexibility. This paper posits the idea that for the individual employee to benefit from these new rights what is required is the situation of dialogues within the workplace that take place in an ethical frame that recognises the employee as an individual.

Symbolism of the Spirit of the Laws: A Genealogical Excursus to Legal and Political Semiotics

The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law. The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply highlight the virtues of demos and the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural identity politics.

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Stalking Policies and Research in the United States: A Twenty Year Retrospective

Twenty years ago California passed the first stalking law in the United States. Since then, much has been done in the U.S. to increase regulation and understanding of this serious crime. All states and the District of Columbia have laws criminalizing stalking. The U.S. Congress enacted a law making it illegal to stalk across state, federal, and international boundaries. It also mandated a model stalking code for states be developed that is both constitutional and effective, and established January National Stalking Awareness Month. The National Center for Victims of Crime established the Stalking Resource Center to raise awareness and encourage the development and implementation of multi-disciplinary responses to stalking in local communities. In addition, there has been an explosion of stalking research, including two national surveys on stalking victimization and a study on the implementation of stalking laws nationwide. Despite these many achievements, significant deficiencies exist with respect to U.S. stalking policies and research. Many policymakers and practitioners are unclear about what constitutes stalking. Stalking statutes vary widely from state to state with respect to behaviors outlawed and penalties imposed. Reliable information about many aspects of stalking is not readily available, and implementation of stalking laws remains limited. This paper examines these issues in more detail and provides recommendations on how U.S. stalking policies and research may be improved.

Forfeiture and money laundering laws in the United States

Today Europe is faced increasingly with the phenomenon of organized crime, creating problems similar to those the United States faced as early as a decade ago. American forfeiture and money laundering laws provide the state with sweeping powers for use in its efforts to combat organized crime. Although study of these instruments might inspire European lawmakers to adopt similar ones, the instruments themselves carry a societal price tag that cannot be ignored. Classical principles limiting the reach of the criminal law (and the powers of its enforcement apparatus) and in a broader sense the liberal concept of the fragmentary nature of the criminal law have largely been abandoned by lawmakers in the area of organized crime. Thus, modern American forfeiture and money laundering laws have lowered the standards of protection against state intrusion into citizens' basic rights despite the lack of sufficient empirical proof that their investigative and punitive powers are efficient in skimming profits and deterring further crime.     

“Curiosity and a Pimp”: Exploring Sex Trafficking Victimization in Experiences of Entering Sex Trade Industry Work Among Participants in a Prostitution Diversion Program

This mixed-methods study explored entry into the sex trade industry and experiences of sex trafficking victimization among 478 adult women enrolled in a prostitution diversion program in a large southwestern state. Written responses to several open-ended survey questions were coded using a template approach to content analysis wherein a priori codes were identified based on characteristics of sex trafficking victimization identified in the Victims of Trafficking and Violence Protection Act of 2000 (U.S. Department of State, 2000 U.S. Department of State. (2000). Victims of Trafficking and Violence Protection Act of 2000. Retrieved from http://www.state.gov/j/tip/laws/61124.htm [Google Scholar]). Findings revealed that approximately one third of participants (n = 161) described sex trafficking experiences on entry into the sex trade industry, and quantitative analysis revealed that women who experienced sex trafficking as part of entering the sex trade industry were more likely to report abuse during childhood and adulthood, to report gang involvement, and to be involved in multiple types of sex trade industry work. Implications for policy and practice are discussed.     

Preventing HIV transmission via HIV exposure laws: applying logic and mathematical modeling to compare statutory approaches to penalizing undisclosed exposure to HIV

Twenty-four U.S. states have enacted HIV exposure laws that prohibit HIV-positive persons from engaging in sexual activities with partners to whom they have not disclosed their HIV status. There is little standardization among existing HIV exposure laws, which vary substantially with respect to the sexual activities that are prohibited without prior serostatus disclosure. Logical analysis and mathematical modeling were used to explore the HIV prevention effectiveness of two types of HIV exposure laws: "strict" laws that require HIV-positive persons to disclose their serostatus to prospective partners prior to any sexual activity and "flexible" laws that require seropositive status disclosure only prior to high-risk sex (e.g., unprotected anal or vaginal intercourse). These laws were compared relative to each other and to a no-law alternative. The results of these analyses indicate that, under most (though not necessarily all) circumstances, both strict and flexible exposure laws can be expected to reduce HIV transmission risk relative to the no-law alternative, with flexible exposure laws producing the greater reduction in risk. This study demonstrates how logical analysis and mathematical modeling techniques can make an important contribution to the construction of a rational basis for decisions about a highly contested public health policy issue.     

论法律保留对“校规”的适用边界——从发表论文等与学位“挂钩”谈起

大学并非一国之"租界",因此,大学事务亦有法律保留原则适用之必要,但是学术自由内在要求国家法律只能是宏观性和方向性的"框架立法",进而给大学自治这一制度性保障留足创制空间。大学"校规"与国家法律的关系,根据不同的"校规"类型有着很大的差异。对"学术性规则"而言,法律设定的"国标"只是学术的"最低标准",为教育质量计,各大学的"学术性规则"可以在法律之上设定更加严格的学术条件。而对"行政性规则",法律则是不可逾越的"上限"规范,只是就我国的法治实践现实观之,应破除"国家权力单一"的神话,确立"国家—社会"二元权力构造,进而给自治团体的自我型塑留下适当的裁量余地。当然,符合"法律保留原则",仅在宪法审查之路上迈出了"形式上"的第一步,"校规"要满足合宪要件,还必须存在"实质阻却违宪事由",这又要接受"比例原则"的合理性检验。