Reply to Martha Nussbaum and Ian Hacking

Law and Philosophy -     

Responding to Roommate Troubles: Reconsidering Informal Dyadic Control

Existing analyses of informal control within dyadic relations neglect the nonpenal responses that characterize many such control efforts, and they give minimal attention to the interactional and interpretive processes that characterize such responses. And while dispute transformation provides a well‐developed model of the development of dyadic disputes, this model is limited in prespecifying “injury” as the starting point for these processes and in neglecting informal reactions other than “claiming.” Integrating theories of informal control and dispute transformation, this article provides a case study analyzing the nature and processes of informal reactions to troubles involving college roommates, identifying three general categories of such response: managerial reactions, which involve unilateral, nonconfrontational efforts to manage the consequences or implications of the trouble or to change indirectly the troubling behavior; complaint‐making reactions, where the troubled party attempts to get the other to change the disturbing behavior; and distancing and punitive reactions, which are relationally despairing responses marked by open confrontation and hostility.     

重新认识法律职业：律师与社会公益

经过20多年的恢复与重建，我国的律师事业获得了重大发展，各项制度得以确立并逐步走向完善，律师从业人数也初具规模，律师行业的整体素质也有了较大的提高。但是长久以来在中国，作为维护私权、旨在实现其所代理的客户利益的律师，似乎与社会公共利益之间并无关联且相去甚远。然而，这一现象究竟是法律职业的共性还是中国转型期的特性？律师与社会公共利益之间究竟有无联系？从国家与社会公益的视角看，究竟应当怎样看待法律职业？本文拟就这些问题，作初步的探讨。     

Protecting the Public Policy Rationale of Copyright: Reconsidering Copyright Misuse

Copyright misuse protects a defendant's use of copyrighted material when the plaintiff has claimed a right in his work beyond the scope of copyright law and when such a claim is contrary to public policy. Historically, as this article demonstrates, courts have been reluctant to find in favor of defendants who claim copyright misuse and have interpreted the doctrine narrowly on the basis of antitrust considerations. However, more recent decisions and a growing body of literature suggest a greater role for copyright misuse. This article argues for such an expanded role and proposes a new section of copyright law titled "Limitations on Infringement: Copyright Misuse."     

Five Years Later: Reconsidering the Original ABA Report on MDP

Reconsidering the original report issued in 1999 by the ABA Commission on Multidisciplinary Practice, this essay suggests that that report properly attempted to deal with questions of legal ethics that might arise if the practice of law by lawyers were integrated into an enterprise in which nonlawyers had a significant degree of ultimate control, but that the commission, perhaps because of undue time pressure, neglected to pursue these questions deeply enough. This essay suggests that more was needed than a proposed mechanism for self-certification of compliance with rules of legal ethics, coupled with possible review of compliance. The "more" that was needed, this essay further suggests, was a proposal for the licensing of an enterprise in which lawyers do not have exclusive ultimate control, as a precondition to permitting lawyers in the enterprise to offer legal services to the general public. Thus, before it could offer legal services to the general public, such an enterprise would need to comply with requirements for obtaining a license, and noncompliance with rules of legal ethics could bring into play traditional disciplinary measures including, where appropriate, suspension or revocation of the license.     

Responses to Emery

Richard Neely, Take Back Your Neighborhood New York: Donald I. Fine, Inc., 1990, 224pp.     

Structure and control: Reconsidering Hirschi's concept of commitment

Hirschi's concept of commitment confuses the definition and the explanation of conformity, as part of a more general confusion between conformity and legality. The result is tautology—an explanation that merely restates a definition. Commitment is properly conceived as an antecedent variable that measures the role of social structure in the origin of delinquency. As such, it explains legal actions but not conforming actions.     

Reconsidering the Premises of Labour Law: Prolegomena to an EU Regulation on the Protection of Employees' Personal Data

With its 1985 Directive on Data Protection, the European Union highlighted its commitment to the constitutionalisation of European law and, in particular, underlined its vision of the individual European as a rights-bearing individual; empowered through 'knowledge' and thus advantaged in communicative processes of political/social/legal bargaining. As such, the move to a data protection regime founded upon notions of individual empowerment, also mirrors a recent and fundamental re‐alignment in the guiding principles of regulative labour law, which has seen the paradigm of 'collective laissez‐faire' challenged, if not superseded, by a redirected emphasis upon the communicative empowerment of the individual employee rather than the representative function of employees' representatives. Accordingly, it is less than surprising that the field of labour law has seen increasing demands placed upon the Commission to fulfil its promise in the pre-amble to the 1985 Directive, and promulgate Regulations crafted to ensure data protection in line with the specific demands of individual societal sectors. This paper is a policy statement. It re-iterates the need for a Regulation on the protection of employees' data. Building on the comparative experience of the Member States, it outlines the nature, provisions and scope which such a regulation should entail so as to reflect, both the reality of the modern employment relationship, and a new normative vision of the workplace which aims to inject such relationships with a measure of communicative participation.     

Reconsidering risk: adapting public policies to intergenerational determinants and biosocial interactions in health-related needs

According to recent research, interactions between infant health and environment can play crucial roles in clustering health and economic disadvantage among certain families. Researchers have provided a clear example of such intergenerational biosocial cycles when they document that interactions between parental low birth weight status and prenatal environment are associated with the risk of a low birth weight, and that interactions between a child's birth weight status and early childhood environment are associated with adult socioeconomic outcomes. In this article, we consider how existing policies may be revised to more effectively address such interactions between social and biological risk categories. We are particularly concerned in this discussion with revising risk categories so they can encompass biological risk, social risk, and developmental frameworks. A framework of biosocial risk is quite flexible and may be applied to a variety of issues and programs; however, in this article we focus on the single case of low birth weight to illustrate our argument. In considering specific applications, we further explore how attention to biosocial interactions may reshape Medicaid, special education, the Earned Income Tax Credit, and Temporary Assistance for Needy Families.     

Business Adaptation to Regulation: What Do We Know and What Do We Need to Know?

There is, predictably, a gap between the normative model and empirical pictures of regulation drawn from many societies. We may get an approximation of the goals of much regulation, but often regulatory policy is not carried out exactly as legislated. Agencies pursue enforcement strategies in light of their priorities and resources. They engage in soft law enforcement and bargain with the targets of regulation. Regulated businesses have many tactics available to blunt or evade regulation. We can fashion plausible normative arguments both for and against these common empirical pictures. To a great extent, however, these normative positions rest on unexamined empirical assumptions. Future research might profitably focus on the roles played by those individuals who act for business associations and cope with regulation. Attention should be paid particularly to the roles played by business lawyers in such coping. James Gould Cozzens' novel , Guard of Honor, suggests how lawyers comply narrowly, evade, cover up and otherwise divert the impact of regulation, all in the service of what they see as the greater good. Cozzens' story suggests important empirical and normative questions for future consideration.     

Trial by Polygraph: Reconsidering the Use of the Guilty Knowledge Technique in Court

Polygraph test results are by and large ruled inadmissible evidence in criminal courts in the US, Canada, and Israel. This is well-conceived with regard to the dominant technique of polygraph interrogation, known as the Control Question Technique (CQT), because it indeed does not meet the required standards for admissible scientific evidence. However, a lesser known and rarely practiced technique, known as the Guilty Knowledge Test (GKT), is capable, if carefully administered, of meeting the recently set Daubert criteria. This paper describes the technique, and argues for considering its admissibility as evidence in criminal courts.     

Reconsidering the relationship between alcohol and lethal violence

Prior event-based research regarding the relationship between alcohol and violence suffers from important limitations, including the absence of a comparison group, an inappropriate comparison group, or a comparison group that could be considered appropriate but does not control for potential confounders. To overcome such limitations, we use a matched pair design. Drawing on interviews with men imprisoned for an aggravated assault or homicide committed in response to a conflict with another man, we examine matched pairs of violent and nonviolent conflicts nested within respondents. The results suggest that guns mediate the relationship between alcohol and lethal male-male violence.