The Forms and Limits of Choice Architecture as a Tool of Government

Although the use of design‐based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design‐based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim “your money or your life?” is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their use by date to stimulate sales. This article focuses on three forms of choice architecture—coercion, inducements, and nudge—employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as libertarian. Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.     

The Rationality Paradox of Nudge: Rational Tools of Government in a World of Bounded Rationality

Nudge and the wider behavioral economics approach has become increasingly dominant in contemporary political and policy discourse. While much attention has been paid to the attractions and criticisms of nudge (such as liberal paternalism), this article argues that nudge is based on a rationality paradox in that it represents an approach that despite its emphasis on bounded rationality, does not reflect on its own limits to rationality. The article considers the implications of this paradox by considering mechanisms that influence government decision making and mechanisms that lead to unintended consequences in the context of policy interventions.     

Minimal Semantics and Legal Interpretation

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.     

Historicising Criminalisation: Conceptual and Empirical Issues

This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about 'overcriminalisation' which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in 'criminalisation scholarship', and suggests there is a failure adequately to distinguish the different senses of 'criminalisation' in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy.     

International Political Terrorism A Challenge for Comparative Research

International political terrorism poses special problems for researchers because of the kind of phenomenon it is. Being international, it occurs in many different sociopolitical and cultural contexts; and, being political, it has direct relevance to practical issues, most notably prevention and control. Comparative, interdisciplinary research which can bridge the gap between theory and practice is essential in dealing with the phenomenon. This paper looks at the special problems which international political terrorism poses for research. Problems related to defining the research problem, conducting the research, and applying the research findings are discussed in turn. Issues discussed include the role of the researcher, the definition of terrorism, data collection and information exchange, self-fulfilling prophecies, and generalizability of results.

A list of specific research strategies and topics pertinent to the study of international political terrorism is given to show the kinds of methods and models which researchers can be expected to encounter. Finally, in recognition of the fact that many research projects on international political terrorism will be funded by agencies interested in prevention and control, a specific section is devoted to analyzing different prevention and control strategies. Three conceptual models are examined: the war model, the criminal justice model, and the communications model. While all three generate fruitful avenues for research, the war model has been the most successful and the most widely applied, the criminal justice model has been the least successful, and the communications model has been the least applied. This condition reflects a narrow focus on short-term, incident-oriented, reactive strategies as opposed to long-term, preventive strategies focused on root causes. It is suggested that a comparative, interdisciplinary approach could generate fruitful new avenues within the communications model and a broader and potentially more profound understanding of the phenomenon of international political terrorism.     

Comparing Juvenile Justice Systems: Towards a Qualitative Research Project in East Asia

This paper contrasts the assumptions and methods used by quantitative criminologists with the approach to comparison pursued by the interpretive tradition in sociology. Whereas quantitative studies tend to conceal distinctive legislative or institutional responses in particular countries, interpretive studies make it possible to address internal debates about policy issues, as well as how practitioners exercise professional judgement. The paper considers a variety of ways in which the interpretive traditions of symbolic interactionism and ethnomethodology have approached comparison. It also considers the conceptual and practical issues that might arise in conducting a qualitative comparative study about juvenile justice within East Asia focusing on Japan, South Korea and Taiwan. Whereas quantitative studies tend to ask questions that interest Western researchers, interpretivism makes possible a dialogue between countries that have different institutions, philosophies and cultures.     

POLICING CORRUPTION AND ECONOMIC CRIME — HOW CAN WE DO IT BETTER?

While history records that economically motivated crime and misconduct in its various forms has existed since the earliest civilizations and has always raised issues of fairness and integrity, in recent years additional concerns have come to the fore. Economic stability particularly in an interdependent world, has thrown up issues related to stability and security. The tools that have been developed to address certain manifestations of economic misconduct and in particular the development of financial intelligence are now used across a much broader spectrum than merely the control of fraud and corruption. We use, for example, the regimes that have been designed to identify suspect wealth for a variety of purposes including the raising of revenue which have less relevance to the direct interdiction of financial crime. This paper considers from a practical rather than conceptual standpoint how best to address the risks and issues thrown up by economically motivated crime and also the mechanisms that have been adopted to address it. In particular it seeks to examine various ways in which economically motivated crime may be better discouraged and its impact mitigated. It does not pretend to be a deeply conceptual analysis of the relevant law given its aspiration to have a wider significance and purchase than one jurisdiction. What it does do, however, is to seek to build upon practical experience and apply it to the fashioning of enhanced weapons in the fight against economic crime.     

我国土地使用权收回类型化研究

土地使用权收回,是我国土地法律体系中一个独特且复杂的概念。目前,无论是行政法学界还是民法学界,对于土地使用权收回的理论基础、种类、性质和适用条件等都缺乏足够关注。通过对我国现行法律和行政、司法实务的梳理发现,客观上存在着"公法上的收回"和"私法上的收回"两种性质不同的土地使用权收回。其中,公法上的收回又可分为征收性收回、处罚性收回、确权性收回三类;私法上的收回又可分为契约性收回和身份性收回两类。不同性质和种类的土地使用权收回生成的理论背景不同,适用条件和范围各不相同,是否补偿和救济途径也有所差异,这些皆需在修改土地管理法等相关法律法规过程中加以明确和细化。     

当代美国自然法理论走势

自然法理论可从道德的、法律的等多个角度加以探讨。凡主张法之为“法”必得满足道德要求 ,或者说 ,法最重要的特征之一乃法具备的道德性这一观点 ,均属“交叠理论”。然 ,交叠理论与概念性法哲学相互交叉、渗透 ,衍生出多种不同的表达方式。本文在此基础上 ,本文对当代美国自然法理论的基本走向和流派进行了考查 ,其中 ,尤以菲尼斯、富勒和德沃金等人的理论为重。     

How to deal with virtual property crime: Judicial dilemma and a theoretical solution from China

In recent years, China has evidenced a large number of criminal precedents on virtual property crime, but how to deal with it remains controversial, both theoretically and practically. Thus, systematic studies based on relevant precedents and doctrines are urgently needed from three perspectives: the conceptual boundary of virtual property, the judicial application of virtual property crime and the determination of the quantitative element of virtual property crime. Accordingly, the current research also seeks to shed light on other countries facing the same issues. In the context of criminal law, virtual property should be screened by three substantive criteria: digitization, value and scarcity. Whether virtual property is identified as a property right or a contractual claim in the field of civil law will not substantially affect the determination of criminal responsibility. Virtual property has both property and data features, and the different legal interests carried by both should be protected by criminal law. For the judicial application of virtual property crime, there are three approaches: property crime, data crime and computer crime. The three do not have a ranking or mutually exclusive relationship, and the principle of ideal concurrence (Idealkonkurrenz) should be applied. When determining the quantitative element of property crime, two different types of users and game operators should be distinguished, and the actual property damage standard should be favoured. When considering data and computer crime to determine the quantitative element, we should not rely excessively on the criteria of illegal income and economic loss, but should make a comprehensive Judgment around the degree of legal interest infringement.     

Bridging the Gender Gap In Bill Sponsorship

Under what circumstances do men sponsor issues that are traditionally regarded as salient primarily to women? By examining the sponsorship of legislation in the upper and lower chambers of 15 state legislatures in 2001, we explored the conditions under which men are likely to focus attention on policy areas involving women's issues and children's issues. We found little effect of institutional context (such as party control of the legislature or diversity within the legislature) on the sponsorship behavior of either men or women. Personal characteristics such as race, education, age, and family circumstances are associated with sponsorship by men, but not by women. Committee service is also strongly associated with sponsorship behavior, particularly for men. Differences in sponsorship are relatively marked in the sponsorship of legislation that focuses on reproduction or other health issues particularly relevant to women. We conclude that the boundaries of the set of issues traditionally defined as “women's issues” may be changing over time and that it is important to recognize that the influences on the sponsorship of women's issues can be different for men than they are for women.     

1981 Review—Current Criminal Justice Projects Here and Abroad

The study of transnational environmental harm demands appreciation of specific methodological and conceptual issues that impinge upon the data collection process. Some of these issues include the ethics and politics of ‘outsiders’ researching other people's territory, the differential availability and types of data in different jurisdictions, the ways in which state denial and corporate resistance impede the research process, and the importance of utilising a wide range of data sources as a means to substantiate claims about harms and the causes of harms. The paper presents an exploration of methodological issues in the study of harms that are global, cross‐national, and/or localised, but which are intrinsically transnational in nature regardless of scale and scope. By understanding the challenges presented to those working in this area, we are also able to identify directions for future methodological development.     

Analysing and Assessing Accountability: A Conceptual Framework1

Abstract: It has been argued that the EU suffers from serious accountability deficits. But how can we establish the existence of accountability deficits? This article tries to get to grips with the appealing but elusive concept of accountability by asking three types of questions. First a conceptual one: what exactly is meant by accountability? In this article the concept of accountability is used in a rather narrow sense: a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences. The second question is analytical: what types of accountability are involved? A series of dimensions of accountability are discerned that can be used to describe the various accountability relations and arrangements that can be found in the different domains of European governance. The third question is evaluative: how should we assess these accountability arrangements? The article provides three evaluative perspectives: a democratic, a constitutional and a learning perspective. Each of these perspectives may produce different types of accountability deficits.     

浅议医事技术纷争的鉴定

医疗事故技术鉴定被运用于诉讼活动就是司法鉴定,它与法医类司法鉴定,是不同类别的鉴定,适用范围不同。作为《侵权责任法》专列的一类特殊侵权类型,其技术鉴定的名称,以“医疗损害责任技术鉴定,为妥。目前委托医学会进行医疗损害责任技术鉴定具有充分的法律依据。医疗纠纷争议中最为关键的“诊疗行为的过错”及“过错与损害后果之间的因果关系”这两个问题,正是法医病理鉴定、法医临床鉴定所无权涉及的内容。     

论民事法律事实的类型区分

依据民法学问题的讨论是否与民法规则的设计或适用直接相关,民法学问题可被区分为民法问题和纯粹民法学问题。民法学界关注和讨论的不少问题,属于与民法规则的设计或适用不直接相关的纯粹民法学问题,其主要包括事实判断问题、价值判断问题和解释选择问题。民事法律事实的类型区分属于纯粹民法学问题中的解释选择问题,我国民法学界就此存在详细区分说、简略区分说与折中说的对立。在三种学说都符合逻辑自洽且富有学说解释力标准的前提下,简略区分说更能满足民法学界对民事法律事实进行类型区分的各种主要学术目的,因而是更为可取的学说。     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Aggregation,ratio variables,and measurement problems in criminological research

Issues of measurement error, level of aggregation, and ratio variables have been considered serious problems in criminological research. Although there have been many recent discussions of these issues in sociology and criminology, studies designed to assess the impact of these problems on the results of empirical research have, for the most part, been absent. After reviewing what is known theoretically and conceptually about these issues, an investigation which compares empirical analyses of a particular type of crime, homicide, that use different measurement strategies, different levels of aggregation, and ratio versus nonratio variables is presented. Utilizing homicide data from the mid-1970s and selected independent variables, the results of this investigation indicate that these three problems can interact in an empirical setting such that potential solutions to these problems do not always apply in the manner suggested in previous studies. The results also indicate that there is great risk in ignoring one or more of these problems in empirical research, in that different substantive conclusions can be reached from analyses that ignore these issues compared with analyses that deal directly with them.     

Putting Ourselves in Another’s Skin: Using the Plasticity of Self-Perception to Enhance Empathy and Decrease Prejudice

The self is one the most important concepts in social cognition and plays a crucial role in determining questions such as which social groups we view ourselves as belonging to and how we relate to others. In the past decade, the self has also become an important topic within cognitive neuroscience with an explosion in the number of studies seeking to understand how different aspects of the self are represented within the brain. In this paper, we first outline the recent research on the neurocognitive basis of the self and highlight a key distinction between two forms of self-representation. The first is the “bodily” self, which is thought to be the basis of subjective experience and is grounded in the processing of sensorimotor signals. The second is the “conceptual” self, which develops through our interactions of other and is formed of a rich network of associative and semantic information. We then investigate how both the bodily and conceptual self are related to social cognition with an emphasis on how self-representations are involved in the processing and creation of prejudice. We then highlight new research demonstrating that the bodily and conceptual self are both malleable and that this malleability can be harnessed in order to achieve a reduction in social prejudice. In particular, we will outline strong evidence that modulating people’s perceptions of the bodily self can lead to changes in attitudes at the conceptual level. We will highlight a series of studies demonstrating that social attitudes towards various social out-groups (e.g. racial groups) can lead to a reduction in prejudice towards that group. Finally, we seek to place these findings in a broader social context by considering how innovations in virtual reality technology can allow experiences of taking on another’s identity are likely to become both more commonplace and more convincing in the future and the various opportunities and risks associated with using such technology to reduce prejudice.     

The Idiom of Legalism in Bar Politics: Lawyers, McCarthyism, and the Civil Rights Era

This paper considers the political role of the organized bar from three perspectives: the historical question of the stance taken by bar associations during the major civil rights debates of the post-World War II period; the sociological question of the extent to which legal associations can act collectively on highly contentious political issues; and the legal question concerning the implications of legal formalism for the politics of the bar. Contrary to the belief that legalism is an inherently conservative means of justifying professional inaction on fundamental issues, the paper argues that in fact legalism may well be the most important basis of intra-professional consensus on those issues as well as the most powerful means by which the profession can influence state and national governments. Legalism can be understood as a common professional idiom which allows mobilization on divisive issues. It can be used in support of both liberal and conservative causes. In this sense, within certain limits, legalism is neutral–an expedient which enables the profession to act politically in circumstances which otherwise would effectively immobilize its collegial associations.