Social Deprivation as Tempting Fate

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is persuasive. I then take up the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged.     

Judicial Decision Making as Knowledge Work

Epstein, Lee, William Landes and Richard Posner. 2013 . The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice . Cambridge, MA: Harvard University Press. 440 pp. Cloth, $49.95. Posner, Richard. 2008 . How Judges Think . Cambridge, MA: Harvard University Press. 400 pp. Paper, $21.00. I review two recent studies of judicial behavior, Posner's How Judges Think (2008) and Epstein, Landes, and Posner's Behavior of Federal Judges (2013). Epstein, Landes, and Posner's volume, the empirically richer of the two books, builds on the conceptual model for explaining judicial behavior put forward in Posner's How Judges Think. I discuss this conceptual model and argue in outline for an alternative model, complementary in part and antagonistic in part to the behaviorist research agenda. Posner and Epstein, Landes, and Posner argue for viewing the judge as a rational actor in a labor market. I argue that analyzing judicial decisions from the perspective of the sociology of knowledge, without axiomatically assuming rationality, will allow us to bring more evidentiary sources to bear on the problem and will allow for a more adequate test of competing theoretical interpretations. Law and society scholars are well positioned to contribute to this line of inquiry.     

Effects of collaborative recall: Denying true information is as powerful as suggesting misinformation

We tested whether someone's ability to tell a good story, in terms of the Reality Monitoring (RM) tool, affects the way s/he judges the stories told by others. Forty participants (undergraduate students) wrote down two statements – one about activities they did 30 minutes ago, and the other about a past event. Subsequently, they rated the quality of a target statement written by someone else. We found that the tendency to provide a not so detailed or a very detailed statement was stable across the two statements the participants wrote. Furthermore, this tendency affected how they judged the target statements: The richer a participant's statements were compared to the target statement, the more critical the participant was in judging the target statement. These findings imply that RM is subject to biases which are related to individual differences. We discuss the implications of these findings for applying the RM lie detection tool in the field.     

Smartphone platforms as privacy regulators

A series of recent developments highlight the increasingly important role of online platforms in impacting data privacy in today's digital economy. Revelations and parliamentary hearings about privacy violations in Facebook's app and service partner ecosystem, EU Court of Justice judgments on joint responsibility of platforms and platform users, and the rise of smartphone app ecosystems where app behaviour is governed by app distribution platforms and operating systems, all show that platform policies can make or break the enjoyment of privacy by users. In this article, we examine these developments and explore the question of what can and should be the role of platforms in protecting data privacy of their users.The article first distinguishes the different roles that platforms can have in ensuring respect for data privacy in relevant ecosystems. These roles include governing access to data, design of relevant interfaces and privacy mechanisms, setting of legal and technical standards, policing behaviour of the platform's (business) users, coordinating responsibility for privacy issues between platform users and the platform, and direct and indirect enforcement of a platform's data privacy standards on relevant players. At a higher level, platforms can also perform a role by translating different international regulatory requirements into platform policies, thereby facilitating compliance of apps in different regulatory environments. And in all of this, platforms are striking a balance between ensuring the respect for data privacy in data-driven environments on the one hand and optimization of the value and business opportunities connected to the platform and underlying data for users of the platform on the other hand.After this analysis of platforms’ roles in protecting privacy, the article turns to the question of what should this role be and how to better integrate platforms in the current legal frameworks for data privacy in Europe and the US. The article will argue for a compromise between direct regulation of platforms and mere self-regulation, in arguing that platforms should be required to make official disclosures about their privacy-related policies and practices for their respective ecosystems. These disclosures should include statements about relevant conditions for access to data and the platform, the platform's standards with respect to privacy and the way in which these standards ensure or facilitate compliance with existing legal frameworks by platform users, and statements with respect to the risks of abuse of different data sources and platform tools and actions taken to prevent or police such abuses. We argue that such integration of platforms in current regulatory frameworks is both feasible and desirable. It would make the role that platforms already have in practice more explicit. This would help to highlight best practices, create more accountability and could save significant regulatory and compliance resources in bringing relevant information together in one place. In addition, it could provide clarity for business users of platforms, who are now sometimes confronted with restrictive decisions by platforms in ways that lack transparency and oversight.     

Justice as active peace

This essay argues for a more formal relationship between policing and mindful practice as taught by the Zen monk Thich Nhat Hanh. The paper explores the value of Nhat Hanh’s teachings for improving the daily implementation of police services by individual officers, and the transformation of the suffering witnessed and experienced by those officers. Practical tools for the cultivation of mindfulness for officers are provided.     

Two Challenges for Dignity as an Expressive Norm

The concept of dignity figures prominently in legal and moral discussion on such topics as human rights, euthanasia, abortion, and criminal punishment. Yet the notion has been criticized for being indeterminate and either insufficient or redundant (or both) in justifying the kinds of legal and moral rights and views its proponents use it to vindicate. The criticisms have inspired some novel conceptions of dignity. One of them is Tarunabh Khaitan??s proposal that dignity should be understood as an expressive norm. In this article, I assess Khaitan??s suggestion. I maintain that it faces two challenges that its advocates should be able to solve for the proposal to be plausible.     

Convertibility as a step for the RMB internationalization

The paper concentrates on the issue of currency convertibility in the context of Chinese strategy of the RMB internationalization. It argues that the motive for that strategy was ignited by China’s dissatisfaction with the long lasting unstable international monetary system. Recent global financial crisis intensified China’s urge to get rid of “dollar trap” and look for a diversified international reserve currency system where the Chinese yuan could take a place. The paper investigates the step-by-step approach from the trade settlement to more comprehensive policy measures. It also emphasizes the importance of domestic financial reforms for the RMB full convertibility, including flexible exchange rate, market determined interest rate and deepened domestic financial market.     

Use of Perchlorate as a Tracer to Allocate Liability

There are few published reports of allocation methodologies for contamination at complex sites not associated with the traditional Superfund landfill scenario (i.e., based on waste in records). Allocation can be especially difficult when the contamination is derived from neighboring facilities. Such was the situation in a lawsuit brought by Solvent Chemical (Solvent) in the United States District Court for the Western District of New York (New York v. Solvent Chem. Co., Inc., 685 F. Supp. 2d 357 (W.D.N.Y)). Solvent had filed a cost-recovery and contribution claim against Olin and DuPont, neighboring industrial facilities, to recover costs associated with groundwater and soil remediation. Solvent alleged that the contamination found in groundwater recovery wells on the Solvent site was predominately due to releases from the former adjacent Dupont chlorinated solvent production facility and from Olin's neighboring former chlorinated benzene production facility. However, complicating matters for Solvent was the former production of chlorinated benzenes at their site. Solvent needed a method of determining the source sites for chlorinated benzenes detected in remediation wells other than concentration since multiple facilities could have been the source. Among the methods employed by Solvent to differentiate the source-site allocation was the fact that perchlorate was indirectly generated at Olin's hypochlorite plant but not at the Solvent site. Therefore, the presence of perchlorate could be used as a tracer of contaminant transport from the Olin operations. The judge's ruling found that Solvent's use of perchlorate as a tracer was compelling evidence regarding the source of chlorinated benzenes and agreed to Solvent's suggested allocation.     

Use of 1,1,2,2-Tetrachloroethane as a Tracer to Determine Liability

Both Olin and DuPont owned industrial facilities adjacent to the Solvent property, and Solvent alleged that the chlorinated aliphatic contamination detected in Solvent's groundwater recovery wells was predominately due to releases from the former DuPont chlorinated-solvent production facility. However, Solvent's position was complicated by the fact that during the 1980s, the Solvent property was used as an unlicensed hazardous waste transfer facility by a third-party (Frontenac Environmental Services, Inc.) and had received more than one hundred thousand gallons of chlorinated aliphatics from various entities. Solvent thus needed a method of determining the source for the chlorinated aliphatics in their groundwater recovery wells. One of the methods that Solvent used was based on its knowledge that chlorinated solvent production at DuPont involved certain intermediates such as 1,1,2,2-tetrachloroethane (TeCA) that would likely not be present in any of the waste products stored on the Solvent property. The judge found that Solvent's use of a TeCA tracer was compelling evidence regarding the source of chlorinated aliphatics and largely agreed to Solvent's suggested allocation.     

Legal obligation as a duty of deference

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford.     

Queer Criminology as Activism

Belknap’s recent call for greater criminological activism in the service of social justice identifies queer criminology as an important site for such activism. Indeed, much of the work undertaken by queer criminologists is already motivated by a concern to address a variety of injustices—whether in the form of discrimination, heteronormativity, gender binarism, or invisibility—experienced by queer communities in the realm of criminal justice, criminology, and beyond. In this paper, I explore the existing and possible future connections between queer criminology and activism. I highlight the ways in which queer politics have always involved social activism, including activism relating to criminal justice issues. I then suggest some possible directions for expanding queer criminological activism within the traditional academic roles of research, teaching, and service. Pursuing such directions, I argue, is necessary in order to set the foundation for further queer criminological activism beyond academia.     

Mental disorder as the cause of a crime

An offender's punishment can be reduced when a court decides that his mental disorder reduces his responsibility for what he did. Courts have sought to establish whether a mentally disordered offender's responsibility is reduced by asking whether his disorder caused the crime. Acceptance of this “causation by mental disorder” criterion has fluctuated, however. This may be because causal explanations are not the types of explanations we are accustomed to offering for the kinds of acts that bring defendants, and psychiatric witnesses, to court. More often, we offer what philosophers have called “possibility” explanations for these acts. The application of psychiatry to possibility explanations has not been widely explored. It offers the potential for the improved use of psychiatric evidence in criminal proceedings.     

Privacy law as price control

The median Internet user is concerned about digital advertisers collecting personal information. To address these fears, the European Union passed the Privacy Directive to regulate the common business practice of information collection. This paper investigates the potential effects of this regulation, finding that the law is likely to generate several unintended consequences. Economists and legal scholars acknowledge that personal data serves as the “price” for accessing many digital platforms. I extend this logic to argue that if a regulation enables consumers to stop supplying this information, while continuing to consume the site’s content, it is equivalent to a price control. Next, I discuss unintended consequences that this price control may generate: tie-in sales, investment flight, and altered exchange characteristics. Lastly, I conclude that, just as with traditional price controls, the privacy price control may be a way for government officials to enhance their popularity with the citizenry. In short, my analysis suggests that one of the most well-researched policy interests of economics—the theory of price controls—can shed light on one of economists’ newest interests: digital privacy.     

Child protection as surveillance of African American families

The over-representation of black children in US out of home care results from racial bias in placement decisions and a political choice to address startling rates of child poverty by investigating parents instead of tackling poverty's societal roots. The impact of state disruption and supervision of African American families is intensified when it is concentrated in inner-city neighbourhoods – the system's ‘racial geography.’ A small case study of a black neighbourhood in Chicago with high rates of out of home placement found profound effects on both family and community social relationships, as well as reliance on child protective services for financial assistance, linking surveillance of black families to the neoliberal shrinking of public programmes. The surveillance of African American women by the child welfare system is also intensified by these women's disproportionate involvement in the prison system. Acknowledging racial bias in child welfare reveals the need to radically transform the system from one that relies too much on punitive disruption of families to one that generously supports them.     

Should Abused Women's Reports of Partner Substance Abuse Be Accepted as Valid?

Current research suggests that a husband's substance abuse is correlated with severity of physical abuse and the woman's decision to leave a violent situation. Often, only the battered woman's report of abuse is available. This study compares women's reports of their partners' substance use/abuse with their partners' report using a brief measure of polydrug and alcohol abuse, the Substance Abuse Subtle Screening Inventory (SASSI) and the Conflict Tactics Scale (CTS). Data were analyzed for 25 recovery couples and 25 nonrecovery couples. The correlations for all 50 couples between the male's reported use and the female's report of her partner's use on the SASSI and the CTS were significant on all but one of the CTS scales. They ranged on SASSI from .73 to .33 and from .31 to .06 on the CTS. This suggests that the SASSI and possibly the CTS could be used as valuable tools for assessing women's reports of their partner's substance use/abuse.     

Successful Restitution as a Predictor of Juvenile Recidivism

Abstract This is an evaluative study of a juvenile probationary project in which youth are ordered to pay restitution as a term of probation and, to assure them means of compliance, the juvenile court arranges for and supplies their employment. Demographic variables (age and sex) and court-related variables (plea, length of probation, amount of restitution ordered, and amount and proportion actually paid) are examined in relation to one another and, most important, in relation to recidivism as measured by subsequent law violations for which the offender was investigated, and subsequent law violations that resulted in formal charges against the youth. The data demonstrate that recidivism is related to severity of the initial offense, but more important, it is related to the youth's success in achieving the restitution goal. Successful compliance with the restitution order, when success is measured by amount of restitution paid relative to the amount ordered by the court, is significantly related to revocation of probation, time given to pay, amount ordered to be paid, and subsequent offenses charged. Indeed, the proportion of restitution paid is the most important predictor of recidivism. The data reinforce the dominant legislative position that an offender's ability to pay must be taken into account in ordering restitution.     

Intoxication as a defence to murder in Seychelles

In Seychelles, the mens rea of murder can be established, as an alternative to an intention to cause death or grievous harm, on the basis of the defendant’s ‘knowledge’ that the act or omission causing death will probably cause death or grievous harm. However, a defendant is only allowed to plead intoxication as a defence where it had become impossible for him to form the necessary ‘intention’ due to intoxication. This article highlights the difficulties in the application of the defence of intoxication to cases where the mens rea for murder is based purely on a defendant’s ‘knowledge’. In analysing the defence of intoxication in Seychelles in cases of murder, the article examines the position under English and Australian law.     

Violence as a part of the drug scene

Our study explores the violence that occurs in the drug scene from the perspective of those who use illicit drugs in Finland. We conducted 56 theme interviews with people with experience using multiple substances and studied how they produced agency related to violent acts. We were interested in the kinds of meanings they gave to violence and how these meanings varied according to different positions: (1) experiencing violence (victim), (2) committing violence and (3) witnessing violence. We found that in the drug scene, these positions were not fixed but overlapping and intertwined. Violence was usually projected onto the psychopharmacological properties of the substances or rationalized as being necessary for survival. The relations to and positions of violence differed considerably between men and women. Whereas in men’s interviews violence was often anchored to masculine power and questions of honour, in women’s accounts it was often related to intimate partner violence. However, irrespective of the individual’s position and gender, violence appeared to be a damaging experience that weakened his or her self-esteem. This vulnerability is encountered when people wish to quit the drug scene and its internal normative rules.     

Palynology and mycology as biological evidence in a homicide case

Criminal cases are studied from several disciplines to link a suspect with a criminal act. In this case, a man was reported missing in a coastal area in Buenos Aires Province, Argentina. The victim's relatives pointed to a possible suspect, and the local police carried out the investigation. We contributed to this research by applying palynological and mycological techniques. Palynomorphs and fungal spores offer valuable trace evidence, as they can be easily transferred between objects and crime scenes due to their minute size and persist on them for a long time. The victim was found 25 days later, lying on sandy soil, which partially covered the body, 35 km from where the suspect was arrested. Comparative samples were collected from the crime scene and the suspect's home and belongings (clothes, footwear, and seized vehicle). The palynological associations obtained from the crime scene and the defendant's belongings were dominated by diatoms and acritarchs (Acantomorphitae), all elements of marine origin, and a high CFU number of Bipolaris cynodontis, which allowed the defendant's clothing to be related to the place of corpse discovery. Soil from the defendant's home had an entirely continental composition, and the fungal biota was characteristic of prairie areas which were different from those of the crime scene.