Love,fear, and justice: Transforming selves for the new world

Two current models of the self are contrasted. The limitations of these (egocentric autonomous and sociocentric organic) models generate five problems for a comprehensive approach to justice. An alternative model is presented that views the self as an agent who is dependent on others and is motivated by both love for the other and fear for the self. This alternative model has three advantages: The two current models can be derived from it; it resolves the problems created by their limitations; it provides a concrete vision of how we must develop ourselves if we wish to obtain a just world.     

A contractual model of the voting behavior of the supreme court: The role of the chief justice

Political scientists have long debated the role of the Supreme Court in public policymaking. Much of the debate has centered around the issue of judicial independence from political factors. Despite a rather extensive debate in the literature, the question of independence has rarely been subjected to systematic testing. This paper examines the role of the Chief Justice of the Supreme Court in linking decisions of the Court to the desires of Congress. Specifically, the paper focuses on the role of the Supreme Court Chief Justice as an agent of Congress that reacts to budgetary signals sent by the Congress. The resulting relationship between budgets allocated to the Court and decisions reached by the Court are analyzed from 1946 to 1988.     

Political corruption and the role of public prosecutors in Italy

This paper analyzes the problem of political corruption in Italy and the role public prosecutors have played in unraveling such a phenomenon. The factors that have contributed to fostering systemic corruption as well as those that have contributed to uncovering such a system are given careful consideration. The most relevant conclusion is that whereas endogenous forces in the judiciary (prosecutors and judges) — in particular, its low level of institutional autonomy — have prevented it from containing corruption, exogenous forces — which have broken the conditions that had favoured the stability of the so-called first Republic — have led prosecutors to engage in massive investigations.This article is a revised version of the paper prepared for delivery at the 1994 Workshop on Corruption and Politics held at the Instituto Internacional de Sociologia Juridica, Onati (Spain), July 13–14, 1994. I am appreciative to Prof. Giuseppe Di Federico (University of Bologna) for his deep insights of this complex matter and for his very useful comments.     

Volition, deception, and the evolution of justice

Criminal justice is inextricably associated with the attributive concept of volition. Although the voluntary-involuntary distinction is subjectively vivid, causal research shows its poles to be inseparable, i.e., the dichotomy is deceptive. Why a bulwark of civilization should be founded on paradox, may be clarified by examining the role of self-deception in man's evolutionary heritage. Natural selection for an optimal degree of self-deception probably occurred, both to facilitate deception of others and to foster human cooperation. This contributed to the evolution of psychiatric disorders, the voluntary-involuntary continuum, and large scale social systems. Society and its members reach an equilibrium within the truth-deception continuum, manifest in individuals by conscious versus unconscious and voluntary versus involuntary, and in society by tension between what actually occurs (realism) and its organizing ideals (idealism). Three legal models of criminal justice are understood in this context: The (1) utilitarian, most realistic, is essential to social survival but vulnerable to abuse; (2) rehabilitative, at an opposite idealistic pole, better supports the image of social beneficence that helps to bind society's members; (3) retributive, most heavily grounded in volition, puts greater emphasis on individual autonomy, and reciprocally modulates the other models. All are legitimized by evolutionary traditions that antedate homo sapiens, and none is sufficient in itself. Elements of all three models necessarily coexist within any existing society, their relative strength varying with its collective values, prosperity, and perceived safety.     

Recognition of organizations and accreditation of representatives, attorneys, and agents--VA. Proposed rule

The Department of Veterans Affairs (VA) proposes to revise existing procedures and requirements regarding recognition of service organizations and accreditation of their representatives and agents, attorneys, and individuals seeking to represent claimants for benefits administered by VA. These amendments are necessary to improve clarity and to enhance VA's ability to assure high quality representation of claimants.     

The role of prosecutors in promoting and strengthening the rule of law

At the institutional core of governance systems based on the rule of law is not only a strong independent judiciary but also an effective prosecution service committed to upholding the rule of law and human rights in the administration of justice. There are many aspects in the responsibility of prosecutors to promote and strengthen the rule of law, including their duty to combat impunity and ensure the lawfulness of State actions. This paper reviews some of the challenges that prosecutors can anticipate in performing their responsibility to uphold the rule of law. It also touches upon some of the issues that have emerged in recent years in relation to the performance of that important function in the context of emergency situations (e.g. counter-terrorist activities), within the global regime of international cooperation in criminal matters and in the context of post-conflict reconstruction and peace-building initiatives.     

Criminal defense counsels,district attorneys,and the insanity plea: A modest difference of opinion

This research examines differences between samples of 166 city and county prosecutors and 118 defense attorneys from Virginia, Tennessee, and Kentucky concerning their views toward the insanity plea in felony cases. Currently, tests for insanity used by the states are the M’Naghten rule, the ALI Model Penal Code test, and the Smith “irresistible impulse” test or combinations thereof. Defense counsels greatly favor the prosecution bearing the burden of proving a defendant’s sanity, while a majority of prosecutors believe that this is the defense counsel’s responsibility. Twenty-five percent of the prosecutors surveyed believed that it is the prosecutor’s responsibility to show by clear and convincing evidence, beyond a reasonable doubt, that defendants are sane and capable of bearing the responsibility for their crimes alleged. Philosophical and practical arguments about the burden of proof issue are examined. Preferences of defense counsels and prosecutors for different insanity tests are explored, finding that a majority of attorneys favor the more recent ALI test.     

Empathy and objectivity in the legal procedure: the case of Swedish prosecutors

The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.     

Battered wives,lawyers, and district attorneys: An examination of law in action

The legal services received by 146 Milwaukee women who had been beaten by their husbands, but had been free of the violence for at least a year, are described and evaluated. Of these women 106 recieved legal help in connection with at least one battering incident. Some women saw more than one member of the legal profession, so the total number of legal contacts among the 106 women was 255. There is evidence that lawyers and district attorneys were most likely to be used by those battered women for whom the use of personal strategies and informal help sources (such as family and friends) were ineffective in combatting the violence. Contrary to the negative image of lawyers and district attorneys found in the literature on wife beating, most legal service contracts were rated as very or fairly successful by the battered women. The more difficult and severe the situation, the higher the success ratings given to lawyers and district attorneys by their clients. Despite the generally positive reactions that most beaten women had to lawyers and district attorneys, there were many negative incidents reported, including district attorneys who refused service or discouraged battered women from filing charges, and lawyers who sided with the aggressors or attempted to meet their personal and professional needs at the expense of their clients. These incidents remind us that it would be useful to educate legal professionals about the nature of family violence, the situation and needs of battered women, and the legal and ethical responsibilities that lawyers and district attorneys have when they are contacted by battered women.     

Citizenship, mental illness, and the criminal justice system

The concept of citizenship in regard to persons with mental illness has gained increasing attention in recent years, but little empirical research has been conducted on this topic. In addition, little research or conceptual writing has been done on the topic of criminal justice in regard to citizenship for people with mental illness, in spite of the high incidence of criminal charges and incarceration among this group. We review our work on an applied theoretical framework of citizenship, including its origins in mental health outreach work to people who are homeless and in a jail diversion program. We then suggest the contribution the framework can make to the intersecting issues of mental illness, its criminalization in the U.S., and the goal of community integration for people with mental illness.     

Crisis,justice, and managing the appetite for risk

Jindal Global Law Review - The phrase ‘never let a good crisis go to waste’ is often (mis)attributed to Winston Churchill. It expresses the common perception that the sentiments evoked...