SOME MISLEADING CONCEPTIONS IN SENTENCING RESEARCH

Most studies of sentencing practices in both adult and juvenile courts have compared the relative power to predict dispositions of “legal” variables, such as the seriousness of offense and previous arrest record, and “extralegal” variables, such as race and social class. It is suggested that this is a misleading model for research on the decision-making process in juvenile courts. Instead, results presented here indicate that the juvenile court uses a model of substantive decision-making oriented toward the character and social environment of offenders. Social background variables are found to be more important determinants of disposition than either “legal” or “extralegal” variables.     

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.”     

Basketball in the Key of Law: The Significance of Disputing in Pick‐Up Basketball

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman's Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in informal “pick‐up” games transform the meaning of their activity through disputing. By playing in a legalistic way, players constitute the game as “real” and “serious” rather than “mere play.” The analysis tracks basketball players in the heat of action as they perceive the game, call rule violations, contest those violations, and ultimately give up. Players organize each phase of the dispute's natural history in the “key of law” by constructing and comparing cases, invoking and interpreting rules, setting precedent, arguing over procedure, and proposing solutions. Through these practices, players infuse the game with rich meaning and generate the motivational context demanding that the game be treated as significant. This analysis contributes to an understanding of legal ontology that envisions law's essence as potentiating rather than repairing normative social life.     

DO PARENTS MATTER IN CREATING SELF‐CONTROL IN THEIR CHILDREN? A GENETICALLY INFORMED TEST OF GOTTFREDSON AND HIRSCHI'S THEORY OF LOW SELF‐CONTROL*

Gottfredson and Hirschi's general theory of crime (1990) has generated an abundance of research testing the proposition that low self‐control is the main cause of crime and analogous behaviors. Less empirical work, however, has examined the factors that give rise to low self‐control. Gottfredson and Hirschi suggest that parents are the sole contributors for either fostering or thwarting low self‐control in their children, explicitly discounting the possibility that genetics may play a key role. Yet genetic research has shown that ADHD and other deficits in the frontostriatal system are highly heritable. Our research thus tests whether “parents matter” in creating low self‐control once genetic influences are taken into account. Using a sample of twin children we find that parenting measures have a weak and inconsistent effect. We address the conceptual and methodological issues associated with the failure to address genetic influences in parenting studies.     

PULLING BACK THE CURTAIN ON HERITABILITY STUDIES: BIOSOCIAL CRIMINOLOGY IN THE POSTGENOMIC ERA

Unfortunately, the nature‐versus‐nurture debate continues in criminology. Over the past 5 years, the number of heritability studies in criminology has surged. These studies invariably report sizeable heritability estimates (～50 percent) and minimal effects of the so‐called shared environment for crime and related outcomes. Reports of such high heritabilities for such complex social behaviors are surprising, and findings indicating negligible shared environmental influences (usually interpreted to include parenting and community factors) seem implausible given extensive criminological research demonstrating their significance. Importantly, however, the models on which these estimates are based have fatal flaws for complex social behaviors such as crime. Moreover, the goal of heritability studies—partitioning the effects of nature and nurture—is misguided given the bidirectional, interactional relationship among genes, cells, organisms, and environments. This study provides a critique of heritability study methods and assumptions to illuminate the dubious foundations of heritability estimates and questions the rationale and utility of partitioning genetic and environmental effects. After critiquing the major models, we call for an end to heritability studies. We then present what we perceive to be a more useful biosocial research agenda that is consonant with and informed by recent advances in our understanding of gene function and developmental plasticity.     

Women's Accounts of Domestic Violence

Abstract

Critiques of behavioral inventories, qualitative studies of battered women's experiences, and communications research all suggest that women's accounts of violence contain information and a more complex structure than is captured by checklist measures that focus on types of abuse. We conducted a quantitative thematic analysis of 162 women's accounts of domestic violence to assess structure and content. Most women presented domestic violence as a “story” with an introduction, body and a conclusion: 59% presented a “complete story” and 33% a “near story.” Background information and problem statements were the most prevalent content statements in the “introduction,” and relationship issues and explanations were most common in the “conclusion.” Bivariate analyses revealed that accounts did not vary by socio-demographic factors and severity of the incident. Men were less likely to present complete stories, had far briefer narratives, and never discussed relationship issues. Knowledge of the structure and content of women's accounts provides greater understanding of women's responses to violence.     

Inside the Black Box: How do OSHA Inspections Lead to Reductions in Workplace Injuries?*

We examine different models of employers’ responses to OSHA inspections. The “detection/correction” model assumes that responses are limited to correcting the violations that inspectors cite. The “behavioral shock” model assumes that firms respond by paying more attention to safety issues, even those unrelated to OSHA standards. We test whether some injury types are more affected by inspections than others, or by citations of particular OSHA standards. We conclude that, although citing particular standards can reduce injury types specifically related to those hazards, inspections also affect a wider range of injuries, suggesting a broader impact on managerial attention to safety.     

Hart's and Kelsen's Concepts of Normativity Contrasted*

Abstract. Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading.     

When Social Norms and Pressures Are Not Enough: Environmental Performance in the Trucking Industry

Why do some business firms and not others work hard to advance regulatory values such as environmental protection and comply with regulations? Previous research indicates that business firms are influenced in that regard by a number of variables—not merely the perceived likelihood of legal punishment but also the risk of negative reactions by societal actors (which we call “social license pressures”) and the intensity of managers' commitment to norms of law‐abidingness and environmentalism. This article reports on a study of control of diesel emissions in the trucking industry, a highly competitive market with many small firms, mobile pollution sources, expensive “best control technologies,” and weak regulatory demands. In contrast to findings in studies of large firms, we found that social license pressures on small trucking firms are minimal. Trucking companies' environmental performance—good and bad—flows from managers' economic choices, which are influenced by their particular market niche. In such highly competitive, small‐firm market contexts, these findings imply, significant improvement in environmental performance is not likely without strong direct regulatory pressures.     

Blinded by Sight: The Racial Body and the Origins of the Social Construction of Race

Osagie K. Obasogie's Blinded by Sight: Seeing Race through the Eyes of the Blind (2014) makes important contributions to both to the sociology of law and to critical race studies. The book challenges “colorblind” racial ideology by showing empirically that people who are blind from birth nevertheless “see” race, grasping it as a nearly omnipresent feature of social interaction and social organization. These insights, however, do not diminish the importance of the racial body. Beyond refuting colorblindness, Obasogie's book points to a neverending tension, embedded in what we call racial formation, between the social construction of race and the corporeality of race. This tension has been present since the dawn of empire and African slavery. Obasogie's achievement of falsifying colorblindness should not lead us to neglect the importance of the racial body.     

The Criminal Justice System Creates Incentives for False Convictions

Abstract

The American criminal justice system creates incentives for false conviction. For example, many public crime labs are funded in part per conviction. We show that the number of false convictions per year in the American criminal justice system should be considered “high.” We examine the incentives of police, forensic scientists, prosecutors, and public defenders in the U.S. Police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person. These incentives create what economists call a “multitask problem” that seems to be resulting in a needlessly high rate of false convictions. Public defenders lack the resources and incentives needed to provide a vigorous defense for their clients. Corrective measures are discussed, along with a call for more research.     

AGE AND RULE-BREAKING IN PRISON A Test of Sociocultural Interpretations

Age differences in rule-breaking have been widely noted and widely explained, but rarely if ever have sociological explanations been subjected to actual test. This study examines such age differences among women in prison and lends support to the notion that age differences are more characteristic of inmates with urban backgrounds than of inmates with rural or small town backgrounds. Moreover, among urban inmates age differences appear to be due to age-related normative orientations and commitments rather than age “itself” or related losses of “energy,”“daring,” or “vigor.” Finally, the study supports recurring arguments that non-constitutional characteristics of inmates can shape normative and behavioral conflict within the prison.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

Everything Is Relative,Including the “Absoluteness” of the Current,Restrictive Pollution Exclusion

Although insurers like to call the most recent versions of the pollution exclusion “absolute,” insureds should not necessarily agree—just as many courts have not agreed—that the exclusion is “absolute.” Instead, insureds should examine the precise language of the exclusions at issue, which may on their face provide a basis to argue that a potential for coverage exists. Further, whether the release at issue is made up of “pollutants” or constitutes “pollution” can only be judged by the circumstances of each case. Ultimately, an insured stands to gain if it can demonstrate that some aspect of the underlying claim, no matter how small, remains potentially covered under at least one policy. To avoid a duty to defend, an insurer must conclusively establish that all potential for coverage is excluded. Even a sliver of potential coverage is enough to trigger an insured's right to call upon an insurer to defend the entire underlying action, a right that itself could be worth millions of dollars in attorney's fees and investigation costs.     

The etiology of criminal onset: The enduring salience of nature and nurture

Based on data from the National Longitudinal Study of Adolescent Health (Add Health), the current study was the first to use measures of genetic polymorphisms (DRD2 and DRD4) to empirically examine the onset of crime. Net of the effects of race, age, gender, and low self-control, genetic polymorphisms explained variation in police contacts and arrest, but only among youths in low risk family environments. Moreover, youths with genetic risk factors experienced a later onset than youths without these risk factors. Borrowing from the behavioral and molecular genetics literatures, various interpretations of the findings are discussed as well as a call for increasingly interdisciplinary perspectives in criminology that encompass both sociological and biosocial frameworks.     

The Patent Examiner Sweepstakes

This article presents evidence that patent value varies with random examiner assignment at the U.S. Patent Office. Prior work analyzed firm growth as a function of review by “easy” examiners who grant patents at a high rate. The current research looks past whether a patent is granted and instead focuses on how assignment to an “easy” or “hard” examiner influences the attributes of resultant patents. Focusing on their propensities to reject applications on novelty or obviousness grounds, analysis finds that patents issued by lenient examiners tend to be broader in scope, are more valuable to their owners, and elicit a larger stock market response when granted. Further analysis quantifies the level of variation (“noise”) among examiners. This inquiry finds that the noise level in issuing novelty rejections decreases with examiner experience, while variation among examiners issuing obviousness rejections actually increases with experience. A third line of investigation presents evidence that “stricter” examiners disproportionately reach the correct examination relative to more lenient counterparts. This conclusion is supported by “twin application” analysis comparing outcomes of related U.S. and European applications. Consistent with the literature using this method, the European Patent Office's outcome is considered the “gold standard” for examination, and thus, its decision to grant or deny is assumed correct.     

The true servant: Self-definition of male domestics in an Italian city (Bologna, 17th–19th centuries)

Some historians have classed as servants only people living with their masters; some have excluded farm servants; some have included married domestics living with their own families. The archive of the Bolognese Confraternity of San Vitale, also known as Università dei Servitori, is analyzed in this article to show how one group of servants defined a “true” servant. Their solution was to exclude from their association people who performed what they deemed “filthy” tasks. They also excluded women, giving us a particular insight in the history of gender and masculinity. In their view, the “true” servants were bourgeois (and locally born) men rather than lower class (migrant) women who are often identified as the stereotypical servants. Moreover, most members of the association were married, they had their own families in Bologna and did not always live with their masters. This makes possible the analysis of married male servants living with their own families, a category of servant that has received less attention than life-cycle servants.