The Seven Dirty Words You Can Say on Cable and DBS: Extending Broadcast Indecency Regulation and the First Amendment

Congress has recently considered legislation that would increase the penalties for the broadcast of indecent content and extend broadcast indecency regulation to cable and direct broadcast satellite. Under existing case law this extension of indecency regulation likely would be unconstitutional for two primary reasons. First, many of the factors that justify broadcast indecency regulation are not present in cable or DBS. Second, both cable and DBS can provide subscribers with the ability to block unwanted programming, which would likely be found by courts to be a less restrictive way for the government to achieve its interest in protecting children from exposure to indecent cable or DBS programming.     

个人信息的双重属性与行为主义规制

个人信息的法律保护依赖于公法对个人信息的定位。在公法与公法理论上,有两种看待个人信息的观点。一种观点认为个人信息权是一种基本权利,个人信息应当受到法律的确权保护;另一种观点则将个人信息视为他人言论自由的对象,个人信息的自由获取与使用受到法律保护。但这两种观点都无法从整体上理解个人信息,个人信息权的观点忽视了个人信息的自由流通属性与公共属性,而个人信息作为言论自由对象的观点则忽视了个人信息背后的多重权益。个人信息兼具个体属性与社会流通属性,应当确立一种个人信息相关权益被保护权。从个人信息的双重属性出发,个人信息保护应当在具体场景中确立个人信息收集与利用行为的合理边界。基于场景的行为主义规制更为符合个人信息保护的根本特征,也将为中国的个人信息保护提供一条超越欧美的中国道路。     

从“鼓励性惩罚”到“惩罚性赔偿”——食品药品安全问题的法律经济学分析

近年来,我国食品药品安全事故屡禁不止,执法机构虽然相继采取多种法律制裁手段,但是实施效果不佳.从法律经济学的视角分析,现有的执法手段存在“罚款数额少定罪概率低”“赔偿范围窄”三大不足.这使现有执法手段有时不仅未起到“扬善抑恶”的惩罚作用,反而沦为“惩罚查处为表、鼓励纵容为实”的“鼓励性惩罚”.惩罚性赔偿制度可以有效地解决“鼓励性惩罚”问题.目前我国亟待完善惩罚性赔偿相关法律法规,建立以实际损害为计算标准、以集体诉讼提高司法概率、以惩罚弹性指标保障适度赔偿数额的具体制度,以增强食品药品安全法律的实施效果.     

The More You Say the Less It Means: Overreporting and Attenuated Criterion Validity in a Forensic Disability Sample

A recent publication in Psychological Bulletin by McGrath et al. (Psychological Bulletin 136:450–470, 2010) challenged the necessity of response bias indicators in applied psychological assessment on the grounds that there is insufficient empirical support that shows that they are able to moderate the prediction of substantive measures. The current study challenges their conclusions by examining the effects of response bias in a sample of 2,275 disability litigants. We utilized the validity scales of the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF; Ben-Porath and Tellegen, 2008) in order to establish a group of litigants who did not exhibit evidence of overreporting and compared them to a group of overreporting litigants. The overreporting group scored significantly higher on every Restructured Clinical Scale. Moreover, we compared the criterion validity between various substantive scales on the MMPI-2-RF and extratest measures [e.g., Beck Depression Inventory-II (Beck, Steer, & Brown, 1996)] and found evidence of significantly attenuated criterion validity in the overreporting group. Implications of the study in light of the review by McGrath and colleagues are discussed.     

Thirteenth-Century Origins of Punitive or Exemplary Damages: The Statute of Westminster I (1275) and Roman Law

This article highlights the importance of the Statute of Westminster I in the history of the concept of punitive or exemplary damages in the Anglo-American legal tradition. Maitland had long ago noted that its provisions allowing for double and triple reparation had similarities to duplum and triplum remedies in Roman law. But this tentative hypothesis has not been further explored by scholars. In this article I suggest that the antecedents for the provisions on multiple reparation in Westminster I may lie in the Roman law delicts of furtum or iniuria and their links to actions in duplum and triplum, based on conceptual similarities in the substantive nature of the wrongdoing. This article explores possible avenues for direct Roman law influence as well as indirect means of transmission, namely by non-Roman law sources of concepts analogous to Roman law.     

The Knowing of Monstrosities: Necropower,Spectacular Punishment and Denial

This study examines how newspaper accounts of criminality conceal and illuminate particular types of monstrosity in the postbellum United States. The paper offers an analysis of Gothicism—which typically frames the criminality of marginalized groups—as a technique of racial domination in narrative sites that construct knowledge on criminality and punishment. Analysis reveals a paradoxical lens of Gothicism in which oppressive groups can conceal monstrosity within a colonial context. The analysis of gothic accounts of criminality challenges the ways in which denial shapes modern monstrosity.     

Revenge,Retribution, and Values: Social Attitudes and Punitive Sentencing

This study examined the pattern of relations between vengeance attitudes, right-wing authoritarianism (RWA), and social dominance orientation (SDO) using the structure of value types proposed by Schwartz (Adv Exp Soc Psychol 25:1–65, 1992). Relations between these variables and support for a variety of sentencing options, including capital punishment, were then investigated. One hundred and forty-eight students in Adelaide, South Australia, completed a Vengeance Scale (Stuckless and Goranson, J Soc Behav Pers 7:25–42, 1992), measures of RWA and SDO, the Schwartz Value Survey (1992), and a Sentencing Goals Scale. As predicted, vengeance attitudes and SDO were found to be positively related to the importance of power values and negatively related to the importance of universalism and benevolence values. Vengeance attitudes were negatively related to rehabilitation and positively related to support for retribution and incapacitation sentencing goals, while RWA was positively related to the endorsement of deterrence and incapacitation as sentencing goals. Regression analyses indicated that only RWA and vengeance attitudes were unique predictors of death penalty support. Results provide support for the suggestion that vengeance is closely associated with our notion of retributive justice.     

论执行罚的数额及其法律规范

以＂天价滞纳金＂为主要表现形式的＂天价执行罚＂在行政强制法制化的进程中广受诟病,＂天价执行罚＂的产生主要源于法律对执行罚的数额规范不够明确甚至缺失。国家用规章尤其是用人大立法的形式对执行罚的数额作出明确规范具有积极意义。     

市场化政府经济行为的法律规制

市场化政府经济行为是以实现政府经济社会职能为目的和内容、以市场行为为形式的政府经济行为,在目的、功能、手段、主体、意思表示、适用范围、法律适用上都有其特征,并在我国已有形态多样的实践,可以从多种角度进行归类分析。在现代市场经济体制中,它是市场弥补政府缺陷的主要形式,是市场与政府共生的典型状态,是经济民主的重要表现。为了协调该行为中市场行为与政府行为、政府公共性与自利性、政府主体利益目标与参与主体利益目标等诸多冲突,需要由多个法律部门对该行为作综合调整,并就其适用范围、主体、审查、合同、标准化、价格、竞争、税收、法律责任、争议处理等制度要素作出立法设计。     

Punishing Cruelly: Punishment, Cruelty, and Mercy

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.     

该当与危险:新型刑罚目的对量刑的影响

立基于再犯危险性预测的剥夺犯罪能力是由犯罪学派首先提出的刑罚理论,并广泛应用于保安处分之中,但是新近作为刑罚目的在量刑中的适用却引起了极大的争论。无论是类型化剥夺犯罪能力还是选择性剥夺犯罪能力,在一种有序列的、并合主义的量刑理论中,都可以找到立足之地,并发挥更加重要的作用,将有限的司法资源集中到最需要控制的危险犯罪类型和犯罪人之上,不但为"宽严相济的刑事政策"填补具体内容提供路径与方法,同时能够最大限度地为刑法赢得道德信誉。     

The Punitive Repertoire of Children's Homes and Reformatories

Although equality before the law is one of the fundamental principles of modern democracy, current Western research has shown that discrimination exists within the justice system when enforcing traditional crimes. However, in Scandinavian research on economic crime, the question of equal treatment has been neglected. Based on Swedish data of suspected offenders during 2003, we examined whether different social groups received differential treatment in investigations of traditional and economic crimes. Further, we compared the Regular Police with the Economic Crimes Bureau (ECB) to examine whether the professional specialization of street-level bureaucrats influence the occurrence of differential treatment. We also examined the efficiency of the authorities and more specifically to what extent they issue a waiver of prosecution, a prosecutor's fine, or a court indictment. Besides supporting earlier research on traditional crime, our results show that differential treatment also exists in relation to economic crime, but the patterns of differential treatment are not identical with the ones for traditional crimes. We also found that the two agencies, the ECB and the Regular Police, treat diverse social groups differently. Although the ECB is somewhat more efficient, professional specialization does not appear to be an important factor concerning the issue of differential treatment. It exists regardless of investigating authority. Further action is being taken more often in relation to men and those with a lower level of education at both agencies. However, in some cases the suspect's background does have a different effect on the work of the two agencies, with the ECB less often taking further action against ‘Swedes’ and those on ‘high incomes’, while the Regular Police less often take further action against ‘immigrants’ and those on ‘low and middle incomes’.     

Beyond Punishment: The Penal State's Interventionist,Covert, and Negligent Modalities of Control

This article investigates the involvement of the penal state in the lives of criminalized people as a controlling force that takes multiple forms. We offer the concept of modalities of penal control and identify three such modalities in addition to expressive punishment: interventionist penal control is accomplished in extralegal ways; covert penal control is hidden from public view; and negligent penal control is characterized by the absence of action by state actors. This article illustrates empirical cases of each modality, using data from three distinct projects based in Chicago, southern Wisconsin, and nationwide. The data include observations of post‐prison groups and homes, interviews with criminalized people and nongovernmental organizational (NGO) staff, statutes, and regulations. This expanded understanding of penal state involvement extends beyond the understanding that characterizes discussions of mass incarceration and highlights the need for comprehensive reform.     

Punitive Damage Decision Making: The Decisions of Citizens and Trial Court Judges

Some states have allocated the authority to determine the amount of punitive damages to judges rather than to juries. This study explored the determination of damages by jury-eligible citizens and trial court judges. The punitive damage awards of both groups were of similar magnitude and variability. The compensatory damages of jurors were marginally lower but, in some conditions, were more variable than the compensatory damage awards of judges. Both groups appropriately utilized information about both the actual and potential severity of the harm to the plaintiff in determining punitive damages and used only the actual severity of the injury in determining compensatory damages. The punitive damage awards of both groups were influenced by the wealth of the defendant, but the compensatory damage awards of judges were marginally more influenced by defendant wealth than those of citizens. The results are discussed in the context of proposals for punitive damages reform.     

Religion, Historical Contingencies, and Institutional Conditions of Criminal Punishment: The German Case and Beyond

Religion and historical contingencies help explain cross-national and historic variation of criminal law and punishment. Case studies from German history suggest: First, the Calvinist affiliation of early Prussian monarchs advanced the centralization of power, rationalization of government bureaucracy, and elements of the welfare state, factors that are likely to affect punishment. Second, the dominant position of Lutheranism in the German population advanced the institutionalization of a separation of forgiveness in the private sphere versus punishment of "outer behavior" by the state. Third, these principles became secularized in philosophy, jurisprudence, and nineteenth-century criminal codes. Fourth, partly due to historical contingencies, these codes remained in effect into post–World War II Germany. Fifth, the experience of the Nazi regime motivated major changes in criminal law, legal thought, public opinion, and religious ideas about punishment in the Federal Republic of Germany. Religion thus directly and indirectly affects criminal law and punishment, in interaction with historical contingencies, institutional conditions of the state, and other structural factors.     

公共惩罚与私人惩罚的互动——一个解读法律制度的新视角

公共惩罚与私人惩罚既相互排斥又相互补充,公共惩罚与私人惩罚的互动可以作为一个解读法律制度的视角。国家为维持法律实施的垄断,通常会对私人惩罚手段(尤其是私人暴力)进行限制,但为节省公共惩罚资源的支出,法律又必须在某些场合容忍甚至利用私人之间的监控与惩罚,公共惩罚资源的有限性迫使国家把私人之间的监控和惩罚视为一项重要的社会控制资源。法律制度的设计应当充分发挥公共惩罚和私人惩罚的比较优势,合理划分公共控制区域和私人控制区域,并努力追求社会控制总成本(即公共控制成本和私人控制成本之和)的最小化。西方近代政治的古典自由主义、中国古代政治的消极无为主义以及公法与私法的区分都在一定程度上体现了这一原则。