Health, Social Movements, and Rights-based Litigation in South Africa

This article investigates the impact of rights-based litigation on social struggles in the South African health sector. It considers the manner in which individuals and social movements have utilized rights and the legal process in their efforts to dismantle the ill-health/poverty cycle, in the particular context of the struggle for universal access to treatment for HIV/AIDS. Relying on literature concerning the transformative potential of socio-economic rights litigation and on examples from South African case law, the article critically evaluates the gains that have been made and the obstacles that have been encountered in this context. It argues that rights-based litigation presents a powerful tool in the struggle against poverty, but also elaborates on structural and institutional hurdles that continue to inhibit the effectiveness of rights-based strategies in this regard.     

Trust, Distrust and Betrayal: A Social Housing Case Study

This paper discusses the importance of trust, distrust and betrayal in the context of relational contracts in the modern welfare state. We use a specific case study of the allocation of social housing. That context is one in which the local authority has statutory obligations towards households in housing need but limited ability to fulfil those obligations without reliance on other social housing providers, specifically registered social landlords. Relationships between providers are, in theory, negotiated through nominations agreements. In this paper, we draw on data from a research project concerned with 'problematic nominations' to illustrate the production of trust, distrust and betrayal. Our analysis is structured by reference to three frameworks for the production of trust: characteristic-based, process-based and institutional based trust.     

Science, values and politics: an insider’s reflections on corporate crime research

Diverse social and political forces have long shaped research on corporate crime and its social control in the U.S., and they have responded to this work in plural and contradictory ways. These forces range from the abstract and institutional to the local and personal. In this essay, I reflect on my three decades of research experience in this arena in an examination of these forces and their implications for research and public policy. More overtly than other forms of criminological research, the study of corporate lawbreaking has conjoined issues of values and politics with issues of science. This feature of the work has made consistently problematic such foundational questions as how to define the subject of inquiry, how to study it, and how to communicate about it. While this volatility has contributed to the ongoing marginalization of this research stream in both academic criminology and regulatory policy, it has also created a certain intellectual dynamism that should attract future generations of investigators to these questions, and to greater cross-disciplinary efforts to address them. Such developments may even pave the way to greater consideration of such research by policy-makers, should socioeconomic conditions in the U.S. and around the world raise the public salience of corporate wrongdoing. ‘Why do you want to study corporate managers? We know how they think.’ ‘…a book entitled Corporate Crime automatically puts us on guard to defend the corporations…such a book should never have been written in the first place.’      

司法转型中指导性案例的生成机理

公报案例向指导性案例的程序性迈进是司法转型中国语境的微观镜像,也是社会转型期司法职业共同体为解决司法供给与社会需求之间紧张关系而作出的制度性回应。指导性案例生成的技术路径应是法律发现,而非法官造法,对其进行理性运作应遵循开放性进路,包括对案件开放、对方法开放和对社会开放。在指导性案例生成的程序性要件中,审判委员会作为决策机制的枢纽,是指导性真正走向权威性的组织保障,也是其主体自觉获得集体智慧的法治信任前提。     

Infusing Public Law into Privatized Welfare: Lawyers,Economists, and the Competing Logics of Administrative Reform

Along with the trend toward “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization,” the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare‐to‐work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post‐bureaucratic setting. The study demonstrates how eventually public law norms were re‐infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.     

The Impact of Post-Enactment Review on Anti-Terrorism Laws: Four Jurisdictions Compared

This paper examines a significant legislative challenge in many jurisdictions around the world a decade on from the events of 11 September 2001. Using Australia, Canada, New Zealand and the United Kingdom as case studies, it aims to assess the relative effectiveness of regular and extraordinary review mechanisms at the national level in leading to the improvement of anti-terrorism laws. That such mechanisms often appear to meet with only muted success says something about their institutional weakness and also the tension that inheres in legislatures as simultaneously legal and political institutions. Further, it reflects the authority and legitimacy to which national security law quickly lays claim in a political culture. This makes it resistant to reform, even when aspects of it can be said to be part of the terrorist problem rather than its solution.     

After the Crash: A Perspective on Multilevel European Democracy

From a social‐market perspective, European integration has reduced the capacity of democratic politics to deal with the challenges of global capitalism, and it has contributed to rising social inequality. The article summarises the institutional asymmetries which have done most to constrain democratic political choices and to shift the balance between capital, labour and the state: the priority of negative over positive integration and of monetary integration over political and social integration. It will then explain why efforts to democratise European politics will not be able to overcome these asymmetries and why politically feasible reforms will not be able to remove them. On the speculative assumption that the aftermath of a deep crisis might indeed create the window of opportunity for a political re‐foundation of European integration, the concluding section will outline institutional ground rules that might facilitate democratic political action at both European and national levels.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

COERCION TO RESTITUTION: Criminal Processing of Civil Disputes

Growing efforts to achieve social control through noncoercive means need to be evaluated for the role played by the implicit threat of coercion. This article examines restitutive settlements of selected criminal violations through the active efforts of a county prosecutor's office. The study reveals that it is the threat of coercion underlying the execution of remedies that facilitates efficient processing of commercial disputes in the criminal justice system.     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

The social dynamics of revictimization and intimate partner violence: an embodied,gendered, institutional and life course perspective

This article offers a qualitative, institutional analysis of the dynamics of revictimization as the accumulation of disadvantages over time and across different institutional contexts, and its multiple gender dimensions. It draws on 37 qualitative interviews with victims of intimate partner violence, detailing the institutional causal pathways to victimization and revictimization over the life course, through the in-depth analysis of one case. Drawing on the vulnerability approach, developed by Martha Albertson Fineman, the analysis demonstrates how victimization and revictimization have been facilitated, tolerated, and even produced by particular institutional contexts, illustrating how the risk of revictimization is not a characteristic of the individual, nor is it destiny. The article contributes to a constructive social science, elucidating how victimization is contingent on social and institutional contexts, and how at several critical points, better institutions and better institutional responses to particular events might have prevented or interrupted the dynamics of accumulating victimization. Focusing on embodied, gendered subjects and the role of institutions in producing as well as remedying inequalities has far-reaching implications for research and prevention of violence. In contrast to a risk-factor approach targeting particular groups and individuals, a vulnerability analysis calls for a responsive state and universal institutional solutions.     

An end to a consensus on health care in the Federal Republic of Germany?

Over the past fifteen years the national government in the Federal Republic of Germany has animated the political debate about rising health care expenditures. However, it has only provided health policy leadership by shifting the burden of financing health and medical care to others. This paper presents three cases that illustrate the political and institutional constraints inherent in the German policy process that limit the proposal and implementation of appropriate policy solutions to rising health care costs. Cost controls have been inhibited because of the near-universal entitlement of national health insurance, the access all social groups have to advanced medical care, and policies targeted at providers rather than users of health services. The paper also underscores the past and future importance of regional policy coalitions in shaping national health policy.     

Explaining the process of change taking place in legal rules and social norms: The cases of institutional economics and new institutional economics

This paper deals with the phenomenon of institutional change and has been conceived as an attempt to answer the following question: Can we retain theimage of institutional change contained in a theory when we replace a methodological foundation on which the theory was built by a different and alternative one? For an answer to be developed, special attention is paid to the contributions made by institutional economists (IE) and those made by transaction cost—new institutional economists (NIE). The question clearly shows that it is a paper on applied methodology rather than a survey on institutional change contributions. Because of that, its main purpose is not to increase our knowledge about the characteristics of real changes in legal rules and social norms, their causes, their processes, or their effects, though several examples are given of those institutionalist and new institutionalist contributions that analyze those changes. Our purpose is to investigate the way in which these two groups of economists approach the object of analysis already mentioned. Our conclusion will be that institutionalist and new institutionalist contributions are built on two different and mutually exclusive approaches because their respective methods of analysis (holism versus methodological individualism) are different and, above all, because they build their respective analyses on some concepts that are mutually exclusive (concepts showing power or nonvoluntary influences versus concepts showing voluntary transactions). Their analyses contain different and mutually exclusiveimages of the changes taking place in legal rules-formal institutions and social norms-informal institutions. Some comments about the limitations of the holist method of analysis are made in the paper.     

Foul weather friends: big business and health care reform in the 1990s in historical perspective

Existing accounts of the Clinton health reform efforts of the early 1990s neglect to examine how the change in big business reform interests during the short period between the late 1980s and 1994 might have altered the trajectory of compulsory health insurance legislation in Congress. This article explores evidence that big employers lost their early interest in reform because they believed their private remedies for bringing down health cost inflation were finally beginning to work. This had a discouraging effect on reform efforts. Historical analysis shows how hard times during the Great Depression also aligned big business interests with those of reformers seeking compulsory social insurance. Unlike the present case, however, the economic climate did not quickly improve, and the social insurance reform of the New Deal succeeded. The article speculates, therefore, that had employer health expenditures not flattened out, continuing and even growing big business support might have neutralized small business and other opposition that contributed heavily to the failure of reform. Thus in light of the Clinton administration's demonstrated willingness to compromise with business on details of its plan, some kind of major reform might have succeeded.     

Assessment and training of social competence in dangerous psychiatric patients

Traditional approaches to the assessment and treatment of individuals who have demonstrated dangerous behavior have been based upon a trait model of personality. The social competence model differs from the trait model by assuming that much behavior is situationally determined, that new socially competent behavior patterns can be acquired through observation of models and practice, and that the frequency of undesirable behaviors can be reduced by increasing the frequency of incompatible, desirable behaviors. This paper reports the applications of the social competence model to the assessment and treatment of men in a security hospital, including individuals confined because of specific offenses, such as sex crimes, arson, and institutional assault, as well as those with high overcontrolled-hostility scores, low overall social skill ratings, and low popularity ratings from their peers. The social skills training approach that we have employed has been most successful with sex offenders and arsonists. The results suggest that the most withdrawn and shy individuals derive the greatest benefit from our social skills training approach while overassertive individuals benefit least. It is hypothesized that staff may reward unassertive patient behavior and punish assertive behavior and that future research must focus on changing this pattern in order to foster socially competent behavior by institutional residents. While many problems remain to be answered, our preliminary results suggest the usefulness of the social competence approach in the assessment and treatment of dangerous psychiatric patients and offer the possibility that the approach may lead to better control of violent behavior in the future.     

Unmanaged care: towards moral fairness in health care coverage

Health insurers are generally guided by the principle of "actuarial fairness," according to which they distinguish among various risks on the basis of cost-related factors. Thus, insurers often limit or deny coverage for vision care, hearing aids, mental health care, and even AIDS treatment based on actuarial justifications. Furthermore, approximately forty-two million Americans have no health insurance at all, because most of these individuals cannot afford the cost of insurance. This Article argues that Americans have come to demand more than actuarial fairness from health insurers and are increasingly concerned by what I call "moral fairness." This is evidenced by the hundreds of laws that have been passed to constrain insurers' discretion with respect to particular coverage decisions. Legislative mandates are frequent, but seemingly haphazard, following no systematic methodology. This Article suggests an analytical framework that can be utilized to determine which interventions are appropriate and evaluates a variety of means by which moral fairness could be promoted in the arena of health care coverage.     

A LONGITUDINAL TEST OF SOCIAL DISORGANIZATION THEORY: FEEDBACK EFFECTS AMONG COHESION,SOCIAL CONTROL,AND DISORDER*

Social disorganization theory holds that neighborhoods with greater residential stability, higher socioeconomic status, and more ethnic homogeneity experience less disorder because these neighborhoods have higher social cohesion and exercise more social control. Recent extensions of the theory argue that disorder in turn affects these structural characteristics and mechanisms. Using a data set on 74 neighborhoods in the city of Utrecht in the Netherlands spanning 10 years, we tested the extended theory, which to date only a few studies have been able to do because of the unavailability of neighborhood‐level longitudinal data. We also improve on previous studies by distinguishing between the potential for social control (feelings of responsibility) and the actual social control behavior. Cross‐sectional analyses replicate earlier findings, but the results of longitudinal cross‐lagged models suggest that disorder has large consequences for subsequent levels of social control and residential instability, thus leading to more disorder. This is in contrast to most previous studies, which assume disorder to be more a consequence than a cause. This study underlines the importance of longitudinal data, allowing for simultaneously testing the causes and consequences of disorder, as well as the importance of breaking down social control into the two dimensions of the potential for social control and the actual social control behavior.     

Authorizing state crime in Mexico: the importance of a destructive social milieu

This essay seeks to specify some of the social–psychological determinants that led to the mobilization of deadly state crime in the Latin American authoritarian state context. The Mexican case provides an interesting case in which to specify some of these determinants because hundreds of leftist political party militants, often engaged in legal activities, have been gunned down by state agents (the police, the military, local politicians associated with the dominant party-state) or indirectly by hired guns on behalf of state leaders Schatz. S. (Research in Social Movements, Conflicts and Change, 23:255–295, 2001). I argue, in the Mexican case, the leadership authorization of destructive behavior was the critical activating historical condition activating deadly state crime because it created a permissive social milieu that allows for the utilization of more extreme forms of violence including the use of political assassination as a mode of social control. This permissive social milieu was, of course, aided by a passive legal system that generated the almost complete lack of penalties for state-sanctioned brutality. While none of these determinants alone may be sufficient to produce a wave of political–electoral homicides, when they all combine, it makes such destructive behavior very likely to occur.     

Institutional weakness and organized crime in Mexico: the case of Michoacán

In the case of Mexico, the prevalence of organized crime and drug trafficking can be explained more as a consequence of the weak and insufficient institutional bureaucracy that impedes the application of the law than the demand for narcotics in the United States. In this context, a study was undertaken in the state of Michoacán, Mexico, the state where one of the most violent criminal groups, Los Caballeros Templarios (the Knights Templar), a splinter group of La Familia Michoacána (the family Michoacán), is located. This article, which draws upon LaFree’s ‘social control’ research, raises the question of the urgent need to strengthen state and municipal government within an integrated strategy to combat organized crime. Failure to reform bureaucracies and the continued lack of local and state institutions that guarantee a modicum of compliance with the law will result in an institutional environment which continues to favor impunity and delinquency.