A fundamental attribution error? Rethinking cognitive distortions†

The notion of ‘cognitive distortion’ has become enshrined in the offender treatment literature over the last 20 years, yet the concept still suffers from a lack of definitional clarity. In particular, the umbrella term is often used to refer to offence‐supportive attitudes, cognitive processing during an offence sequence, as well as post‐hoc neutralisations or excuses for offending. Of these very different processes, the last one might be the most popular and problematic. Treatment programmes for offenders often aim to eliminate excuse‐making as a primary aim, and decision‐makers place great weight on the degree to which an offender “takes responsibility” for his or her offending. Yet, the relationship between these after‐the‐fact explanations and future crime is not at all clear. Indeed, the designation of post hoc excuses as criminogenic may itself be an example of fallacious thinking. After all, outside of the criminal context, post hoc excuse‐making is widely viewed as normal, healthy, and socially rewarded behaviour. We argue that the open exploration of contextual risk factors leading to offending can help in the identification of criminogenic factors as well as strengthen the therapeutic experience. Rather than insist that offenders take “responsibility” for the past, we suggest that efforts should focus on helping them take responsibility for the future, shifting the therapeutic focus from post hoc excuses to offence‐supportive attitudes and underlying cognitive schemas that are empirically linked to re‐offending.     

An examination of implicit theories among francophone child molesters

Abstract

According to Ward (2000), cognitive distortions emerge from “implicit theories” (ITs). Ward and Keenan (1999) established a typology of the ITs of child molesters in which they classified existing knowledge on their cognitive distortions into five categories: “entitlement”, “nature of harm”, “uncontrollability”, “child as sexual being” and “dangerous world”. The purpose of this research was to examine whether the cognitive distortions of child molesters are encapsulated fully by these five categories of ITs. Semi-structured interviews were conducted with 20 convicted francophone child molesters and their cognitive distortions were analysed. Results indicate that six ITs were present in this sample. “Entitlement”, “nature of harm” and “uncontrollability” were identical to those of Ward and Keenan. “Child as sexual being” and “dangerous world” were present, but varied from their original versions. A new IT emerged, which we called “child as partner”. We discuss these findings in comparison to their original versions.     

End note: Reflections and limitations

Abstract

It may seem curious to some readers to match the outstanding athlete biographical sketches of the main scholar-researchers of this volume with their fierce message regarding the threat to sport, and its practitioners, from sexual harassment. In an absolutist, three second sound bite, mass consumption stereotype-driven developed world, one might expect here a “weakest link” debate about the value(s) of sport. This debate would feature effete, intellectual critics and very muscular, tradition-bound advocates. Not so; for these writers not only demonstrate well-reasoned and literature-informed arguments, and thorough, data-driven analyses but also courageous research programmes extending back to times when the work they did was completely marginalised and misunderstood. Their work, then as now, was fuelled in great part by a deep awareness and regard for the experience of sport as a healthy and joyful human right and by a wish to preserve it as such, for all.     

Disordered personalities at work

Current categorical classification systems of personality disorders (PDs) remain widely used amid growing evidence that argues against the conceptualisation of PDs as independent, discrete entities. Adopting the dimensional perspective of Morey et al. (Journal of Personality Assessment, 49, 245–251, 1985), this study compared PD traits across forensic, psychiatric and “normal” senior business manager samples. There was particular interest in the relative representations of elements of PD closely associated with psychopathic PD because of research suggesting that some “psychopaths” operate within mainstream society, and links that have been made between elements of these so-called “successful” psychopaths, and characteristics associated with success in senior business management roles. The dimensional Minnesota Multiphasic Personality Inventory Scales for DSM III Personality Disorders (MMPI-PD) were shown to be internally consistent for the “normal” sample. Evidence for the qualitative equivalence of the four PD profiles emerged. The PD profile of the senior business manager sample was found to contain significant elements of PD, particularly those that have been referred to as the “emotional components” of psychopathic PD. The findings provide strong support for the continuous distribution of personality disordered traits.     

FAMILY DEFINITIONS AND CHILDREN'S RIGHTS IN CUSTODY DECISION MAKING: THE IMPORTANCE OF A CHANGING LITIGANT CONTEXT

Recent scholarship has advocated two distinct approaches to promoting the preservation of children's attachment relationships during custody disputes between their biological and nonbiological parents. Some scholars argue that legal recognition of expansive definitions of the family is the key to protecting children's attachments, while others argue that such protection is contingent upon legal recognition of children's rights. This research examines the efficacy of these competing arguments through an analysis of 75 cases decided in 21 states and the District of Columbia between 2004 and 2005. Findings suggest that judicial attention to definitions of the family is generally confined to cases involving specific types of litigants; namely, former homosexual partners, couples who utilized fertility technologies, former stepparents, and presumptive fathers. In these instances, attention to broad conceptions of the family is associated with the maintenance of children's attachment relationships. Beyond this particular context, however, judges focus almost exclusively on balancing children's interests and rights against those of their biological parents. These findings suggest that both children's rights and family definitions influence judicial decisions, but their impact is context specific. For those scholars advocating legal change, this is an important insight because it shifts the debate from an “either/or” focus to one that recognizes the importance of the litigant context in custody decision making.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

The Regular Practice of Morality in Law

Abstract. This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or not, remain arguments about the modification of law.     

Enforcing Morality

In debating Patrick Devlin, H. L. A. Hart claimed that the “modern form” of the debate over the legal enforcement of morals centered on the “significance to be attached to the historical fact that certain conduct, no matter what, is prohibited by a positive morality.” This form of the debate was politically important in 1963 in Britain and America, and it remains politically important in these countries today and elsewhere; but it is not the philosophically most interesting form the debate can take. An older form of the debate appealed to natural law or critical morality. It centered on the question of whether political authorities could properly use the criminal law to enforce critical morality, including prohibitions on conduct that was not harmful or disrespectful to others. This paper engages with this older form of the debate. It offers some reasons for thinking that there is a presumption in favor of the view that it is a proper function of the criminal law to enforce critical morality, including that part of critical morality that is not directly concerned with preventing harm or disrespect to others. It then defends this presumption against some arguments recently pressed by Ronald Dworkin.     

Using context and difference in sex offender treatment: An integrated systemic approach

Summary

The primary objective of this paper is to promote a re-examination of the current use of cognitive-behavioural programmes in work with men who have sexually offended against children or adults and to encourage the application of ideas from the systemic field. In order to support this objective, the paper puts forward and develops the following arguments:

1. That the current content of manualised programmes in this field has been distilled too far and left behind some of the most important principles of the cognitive approach. Returning to the work of Marshall et al (1999), the need for a thorough and broad-based assessment of each individual prior to deciding treatment goals is clearly recommended. Further, there is a need to pay much more attention to differences between, as well as similarities of those who sexually offend.

2. That ideas from within the systemic therapeutic field be integrated within existing approaches to attempt to address some of the limitations of cognitive-behaviour therapy as currently employed. Evidence for the potential benefits of this comes from a broad personal experience of working directly with offenders and consulting to group facilitators.

It is concluded that all therapeutic approaches reach a ‘moment of integration’ (Pinsof, 1994), when their failures are recognised and other approaches are drawn on. It is suggested that this moment may be upon us in this area.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Psychological Injury and Law: Journal Policy on Ongoing Debates

This journal, Psychological Injury and Law, has made it a policy to publish articles that are part of ongoing debates. They might not be subject to the standard review process and are published from the perspective that the reader should decide on the merits of the science and arguments presented and that rebuttals, as well, should be allowed in order to make the best scientific case possible. In response to queries, the journal editor describes in depth the review process undertaken for Butcher et al. (Psychological Injury and Law 1(3):191–209, 2008). The journal editor indicated to the reviewers of Butcher et al. (Psychological Injury and Law 1(3):191–209, 2008), that “we let opinions stand even if we do not agree with them, checking uniquely the methodology, data, and science underlying the opinion, and let the scholar writing the rebuttal deal with any differences of opinion, also by addressing methodology, data, and science.” Ben Porath et al. (Psychological Injury and Law 2(2), 2009) have written a rebuttal of Butcher et al., equally reviewed from this perspective.     

Law,the State,and the Dialectics of State Crime

Drawing on material from a study of civil society and state crime in six countries, this article reflects on two themes from Chambliss’s work: the debate between state-centred and more pluralistic views of law, and the “dialectical” approach to the analysis of state crime. It argues for a more pluralistic approach to law than Chambliss and Seidman adopted in Law Order and Power, along with a broader approach to the definition of state crime as a form of deviant behaviour. Case studies from the civil society research illustrate how the strategies adopted by organizations challenging state practices can be understood in terms of an interplay between different forms of law. With some qualifications, we support Chambliss’s dialectical approach, and attempt to clarify just what the term “dialectical” means. Finally we bring together the two strands of the argument to propose an approach to state crime founded on “dialectical legal pluralism”.     

REALITY IS. . . . A RESPONSE TO MARTINDALE,TIPPINS, BEN‐PORATH,AUSTIN, AND WITTMANN

This article is written as a response to the Martindale et al. critique of the Ackerman and Pritzl (2011) child custody evaluation practices article. The Martindale et al. critique focuses on a small portion of the overall results regarding test usage and suggests that the entire article is “flawed and deficient.” However, their critique engages in confirmatory bias and exaggerated statements and ignores the overall value of the article in general. A more broad‐based explanation of the results is provided herein.     

Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law*

Abstract. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula.     

Rolling the Dice: How Many Occurrences Have Occurred?

The insurance litigation that followed from the World Trade Center tragedy has produced two decisions. The two decisions are diametrically opposed. First, the court found that for those insurance policies that contained a definition of the policy term “occurrence,” the collapse of the two buildings constituted a single occurrence. SR International Business Insurance Co., Ltd. v. World Trade Center Properties LLC, et al., 222 F. Supp. 2d 385 (S.D.N.Y. 2002), aff'd, World Trade Center Properties, LLC, et al. v. Hartford Fire Insurance Co., et al., 345 F.3d 154 (2d Cir. 2003). Then, after a trial involving those policies that did not define the term “occurrence,” the jury held that the collapse of the two buildings constituted two occurrences. This incongruous result demonstrates two truths. First, when the insurance industry wants to, it can define the term ‘occurrence’ in a totally unambiguous manner:

Occurrence shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.

See WilProp form insurance policy for the World Trade Center, cited at 345 F.3d at 160.     

Bestialitatis and the New Ethics on “Human” Animals

This article discusses how the legal systems in several Western countries, with a special focus on Italy, address our present day animal rights movement and how these legal systems can faithfully reflect the movement’s values as well as promote them in a manner that will ultimately change the rights themselves and their cultural context: this is an extremely interesting issue for the semiotic study of the “humanization of animals”. Therefore, I will summarize several semiotic arguments using the model of the four ontologies by Philippe Descola and the concept of prospectivism by Eduardo Viveiros De Castro. I expect several important changes will come about thanks to the ties between philosophical animal rights discourse and legal discourse and I also believe that the two most interesting issues will be animal labor and reproduction. I will concentrate on the debate over zoophilia laws in Denmark, Germany and Italy in order to propose a way to understand the threshold which separates humans and animals in our naturalistic ontology. Nowadays, “becoming animals” and “becoming humans” seem to be two central and open-ended semiotic processes: legal rights and animal rights philosophy help bring several issues into focus such as animal subjectivity and informed consent.     

Relapse prevention: Critique and reformulation

Abstract

This paper challenges accepted notions about the importance of cognitive distortions expressed by child molesters. First, we consider the role of excuse-making in a healthy life, and as a result question whether it is in the best interests of our clients to challenge their distortions. We examine the literature on eyewitness reports and the reconstructive nature of memory to call into question the value of requiring child molesters’ reports of their offence to match the victim's account. Next we show that the evidence does not demonstrate convincingly that cognitive distortions are criminogenic. Furthermore, the responses of child molesters to measures of cognitive distortions indicate that they simply endorse less disagreement with the items than do others. However, we note that some of these distortions, while not criminogenic, may nevertheless interfere with the acquisition of skills for important treatment targets (e.g. relationships). We offer suggestions for the most effective way to elicit and change these distortions.     

无权处分场合买卖合同的效力与权利瑕疵担保

《民法典》第597条第1款的主要规范目的是,无权处分不影响买卖合同的效力。只要承认权利人的追认会产生所有权变动的效果,就适宜承认存在效力未定的处分行为。区分负担行为和处分行为,在解释论上具有可取之处。在传统债法上,无权处分致使给付不能的,存在适用债务不履行责任抑或权利瑕疵担保责任的争论,两方面规定在构成要件上有实质区别。我国《民法典》合同编实行救济进路,第三人享有所有权、抵押权等权利致使所有权不能转移的,当事人可以选择适用《民法典》第597条第1款或第612条,两者在违约责任的构成要件和效果上并无实质区别。《民法典》第612条中规定的第三人“享有权利”文义范围较窄,应当对其进行目的论扩张,将第三人“过去享有权利”且主张权利的一些情形纳入其中;即使买受人构成善意取得,仍可认定出卖人违反权利瑕疵担保义务。     

The progressive policy shift in the debate on the international tax challenges of the digital economy: A “Pretext” for overhaul of the international tax regime?

This contribution presents a critical overview of the policy and legal debate (primarily from a tax treaty law perspective) surrounding the challenges raised by the digitalisation of the economy for the international tax regime. The article addresses some key policy challenges inherent in the proposals for reform currently under consideration. It focuses in particular on the difficulties associated with fitting the concept of “value creation” within the pre-existing framework based on “source” and “residence”; a gradual transition from a primarily “supply” approach to a “supply and demand” approach in the understanding of “source”; and an implicit drift in the policy debate on the tax implications of the digitalised economy from a targeted analysis aimed at incrementally reforming the existing regime to a full-blown reconsideration of some of its fundamental tenets.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.