Presumptions,Burdens, and Best Interests in Relocation Law

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in‐between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

Key Points for the Family Court Community
• Pure best interests approach to relocation law is a failure
• Presumptions or burdens needed to reform the law, but not just “for” or “against”
• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

     

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.     

企业合规本土化中的“双不起诉”

"放过企业、严惩个人"是欧美国家企业合规不起诉的理念,但在我国企业合规改革试点的典型案例中,既放过企业又放过个人的"双不起诉"现象出现了,这引发了对企业合规不起诉公正性和正当性的质疑。"双不起诉"出现的主要原因在于,我国未严格区分企业刑事责任和个人刑事责任,未厘清企业合规不起诉制度与认罪认罚从宽制度的关系。随着企业合规改革试点的持续推进,有必要对"双不起诉"引发的质疑作出回应,区分企业和个人的刑事责任,对小微企业的合规不起诉给予足够的本土关怀,厘清企业合规不起诉制度与认罪认罚从宽制度的关系,推动我国企业合规本土化深入发展。     

Military Veterans, Culpability, and Blame

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.     

Pre-crime,Post-criminology,and the Captivity of Ultramodern Desire

This article further elaborates on the “pre-crime society” thesis as developed and examined by Arrigo and Sellers. Specifically, the article focuses on the ultramodern era of digital inter-connectivity and argues that productive psychic desire is held clinically captive. Ultra-modernity is populated by cyber-forms of human relating and of economic exchange that nurture hyper-securitization. We discuss how the maintenance of hyper-securitization supports a pre-crime society, and how hyper-securitization’s object of desire consists of sign-optics (i.e., panopticism, synopticism, and banopticism). We argue that the co-constitutive forces (i.e., relational flows and fluctuations) of this desire represent the sign-exchange values of post-criminology. Post-criminology’s signifiers include, among others, “predictive policing”, “crime mapping”, and “actuarial penology.” Post-criminology’s signifieds (re)produce captivity-generating bio-digital “laws” of human relatedness. Among others, these laws sanction the neurosis of de-vitalization and certify the psychosis of finalization. We explain how the unchecked excess neutralizations of de-vitalization and finalization cultivate clinical captivity. Clinical captivity is a social anxiety in which reciprocal consciousness, inter-subjectivity, and mutual power are limited in existence (the reduction of inter-relatedness) or are denied an existence (the repression of inter-relatedness).

     

Toxic Torts,Politics, and Environmental Justice: The Case for Crimtorts*

The borderline between criminal and tort law has been increasingly blurred over the past quarter century by the emergence of new “crimtort” remedies which have evolved to deter and punish corporate polluters. Punitive damages, multiple damages, and other “crimtort” remedies are under unrelenting assault by neo‐conservatives principally because, under this paradigm, the punishment for wrongdoing can be calibrated to the wealth of the polluter. If wealth‐based punishment is eliminated by the “tort reformers,” plaintiffs’ victories in crimtort actions such as those portrayed in the movies Silkwood, A Class Action, and Erin Brockovich will become an endangered species.     

Promoting a culture of fairness: police training,procedural justice,and compliance

Objectives

Academics and practitioners alike are concerned about the potential “double-edged sword” of procedural justice. In the organizational context, procedural justice is expected to increase compliance with supervisors. However, blind, unthinking, or “hard” compliance with supervisors, may lead to anti-organizational behavior and misconduct. The present study examines the moderating effect of a police recruit cultural training program on the relationship between procedural justice and compliance with police supervisors. We expect that providing cultural training will moderate the relationship between procedural justice and “hard” compliance.

Methods

Participants were police recruits at the Queensland Police Academy who were randomly assigned to an experimental (Voice 4 Values) or control condition (business-as-usual training) upon entry into the academy. Recruits in both groups were surveyed pre- and post- training to capture perceptions of procedural justice and compliance with supervisors.

Results

Results suggest that procedural justice mattered less for predicting “hard” or unthinking compliance among the recruits who received the Voice 4 Values cultural training package, compared to those who did not receive the training.

Conclusions

We conclude that while procedural justice may be of interest to policing organizations, it is important that it is not used as a tool to encourage unthinking compliance. We find cultural training reduces the effect of procedural justice on unthinking or “hard” compliance.

     

Lilith in Myth,Melodrama, and Criminology

Abstract

This article illustrates how the social construction of both knowledge and popular culture has been influenced by mythic images of “fair and virginal” good women and “dark and sensual” evil women-what is commonly called the madonna/whore duality. The article examines the myth of Lilith, first wife of Adam, and the images of good and evil women that we can distill from creation myths. We then demonstrate how these images of good and evil women are illustrated in early twentieth century criminology and the 1920s melodrama Lilith.     

Generosity: No Doubt, but at Times Excessive and Delusive

One of the ways in which the artificial languages of mathematics are “generous”, that is, in which they assists the advance of thought, is through its establishment of advanced operatory structures that permit an even further advance of intuition. However, this generosity may be delusive, suggest ideas which in the longer run turn out to be untenable. The paper analyses two cases of “honest generosity”, namely a “proof” of the sign rule “less times less makes plus” from the 1340s and a result in partition theory obtained by Euler by means of rash manipulations of infinite series and products, case-Cantor’s introduction of transfinite numbers from 1895-and (in modern terms) a failed attempt to extend the semi-group of algebraic powers into a complete group, also from c. 1340. Gewöhnlich glaubt der Mensch, wenn er nur Worte hört es müsse sich dabei wohl auch was denken lassen Goethe, Faust I, 2565-2566 He gives the kids free samples because he knows full well that today’s young innocent faces will be tomorrow’s clientele Tom Lehrer, “The Old Dope Peddler”      

Preference for the Diversity Policy Label Versus the Affirmative Action Policy Label

Study 1 assessed associations with the labels “diversity policy” (DP) and “affirmative action policy” (AAP) and perceptions of potential policy components. Student and community participants (N = 143) completed a survey assessing associations with one of the policy labels. Both policies evoked similar associations such as “race/minorities” and “equality/equal opportunity,” but the AAP was more often associated with “bias/inequality/discrimination,” “unfairness,” and “racism/prejudice.” When rating potential policy components, reverse discrimination was considered more likely under the AAP. In Study 2 we explored the evaluation of equivalent policy components associated with different policy labels. Student participants (N = 126) rated the policy labeled as the DP more favorably than the AAP. Both studies suggest more favorable attitudes toward the DP label.     

Experience,quality of life,and neighborhood context: A hierarchical analysis of satisfaction with police

We test three different conceptual models—“experience with police,” “quality of life,” and “neighborhood context”—for directional accuracy and ability to explain satisfaction with the police. We also investigate whether these models help to explain the common finding that African-Americans are more dissatisfied with the police than are Caucasians. To do so, we use hierarchical linear modeling to simultaneously regress our outcome measure on clusters of citizen- and neighborhood-level variables. The analysis was conducted using recently collected information from the Project on Policing Neighborhoods (POPN). The data file consisted of survey responses from 5,361 citizens residing in 58 neighborhoods located in Indianapolis, Indiana and St. Petersburg, Florida. At the citizen level, the psychologically based “quality of life” model accounts for the greatest proportion of explained variance and provides the greatest directional accuracy. Also, residents of neighborhoods characterized by concentrated disadvantage express significantly less satisfaction with the police. In addition, neighborhood context reduces the negative effect of African-American status on satisfaction with police when a sparse citizen-level specification is used; racial variation in satisfaction with police persists, however, when citizen-level hierarchical models are specified more fully.     

Telecommunications terminal equipment: EEC commission opens the market

The 12 Member States of the European Economic Community (EEC) are legally obliged by the Treaty of Rome, as amended by the Single European Act, to abolish all of the remaining physical, technical and fiscal barriers between them by 31 December 1992. The Single European Act, which sets the 1992 deadline, defines the envisaged internal market as “an area without internal frontiers”.The creation of a common European market for telecommunications services and equipment is both an essential prerequisite and an important part of the “internal market”.In its Green Paper on the Development of the Common Market for Telecommunications Services and Equipment — “the Green Paper”¹⁾) — and a follow-up Communication²⁾, the Commission of the European Communities (“the Commission”) has set forth its main policy proposals in the telecommunications field. Implementation of these policy proposals by means of Community law directives is progressing rapidly, in particular with respect to terminal equipment. On 16 May 1988, the Commission issued a“Commission Directive on Competition in the Markets in Telecommunications Terminal Equipment” — “Terminal Equipment Directive” —³⁾ based on its regulatory powers under Art. 90(3) of the Treaty of Rome (“EEC Treaty”).This article explores the regulatory scope of the Terminal Equipment Directive which has recently been challenged by the French government before the European Court of Justice.     

<Emphasis Type="Italic">Karman</Emphasis>-Theory in the <Emphasis Type="Italic">Mahābhārata</Emphasis> Prolegomena to an Inquiry into the Culture and the Condition of Philosophical Reflection About Human Life and the Requirements of Liberation

After delimiting the topic by reflecting on the heuristic function of the concept of “theory” in “Delimiting the Topic” section, the paper considers the literary aspects of karman-theory in the Mahābhārata in “Literary Characteristics” section (treating questions, characters, episodes, tracts, metaphors, and intertextuality). “Axioms, Theorems, Domains” section then lists the elements or axioms that fall under the umbrella term “karman-theory.” Next, dealing with contexts and collocations, “Contexts, Collocations” section combines the consideration of literary and theoretical aspects of the matter. “Historical Perspective” section then argues for the inclusion of a historical perspective in the study of karman-theory. The “Conclusion”, section, formulates provisional results and poses further questions.     

What's in a War? (Politics as War,War as Politics)

Abstract. This paper combines reflections on the current “state of war” in the Middle East with an epistemological discussion of the meaning and implications of the category “war” itself, in order to dissipate the confusions arising from the idea of a “War on Terror.” The first part illustrates the insufficiency of the ideal type involved in dichotomies which are implicit in the naming and classifications of wars. They point nevertheless to a deeper problem which concerns the antinomic character of a collective institution of violence. The second part discusses the extent to which, in spite of the historical transformations in the means and political objectives of wars, the contemporary confrontation still obeys the rules of warfare described by Clausewitz, particularly with respect to temporality (“friction”). The third part discusses “non‐clausewitzian” aspects of the “new wars” defined by Martin Van Creveld and Mary Kaldor, while suggesting that they have left aside the most salient contradiction illustrated by the US interventions, which results from the combination of a claim to universal sovereignty and a reduction of war to generalized police operations.     

Effect of two types of control questions and two question formats on the outcomes of polygraph examinations

Abstract: Two major variations of polygraph “Control Question” testing, the Zone Comparison (ZoC) and the Modified General Question Test (MGQT) were evaluated. Within each, the type of control question, Exclusive or “time bar” (e.g., “Before you were 21, did you ever...”) and Nonexclusive or “no time bar”(e.g., “Did you ever….?”) was manipulated in a mock theft scenario, with 80 male and 40 female subjects randomly assigned to be either innocent or guilty. Polygraphic data collected by experienced field examiners were numerically scored by an evaluator blind to all aspects of the study. Decision accuracy was not related to the type of procedure (ZoC/MGQT) used or the subject’s sex. Accuracy was significantly related to the type of control question [χ²(2) = 11.46, p = 0.003; τc = 0.29]. Nonexclusive control questions produced greater accuracy than Exclusive control questions on both innocent and guilty subjects. These results and subjects’ self‐reports support the general “theory” on which control question (CQ) testing is based. The need for better empirical support of accepted dogma and current field practices is strongly indicated by these findings.     

Is There Touch in the Game of Twister®? The Effects of Innocuous Touch and Suggestive Questions on Children's Eyewitness Memory

Preschool children (ages 48–70 months, N = 48) experienced 2 to-be-remembered events (i.e., the games Twister^® and Shapes) that included either innocuous bodily touch or no touch. Participants were interviewed 7 days later and asked direct (“Did Amy kiss you?”) or suggestive “tag” questions (“Amy kissed you, didn't she?”) equated for content. Results indicated that children who were innocuously touched were no more likely to falsely assent to “abuse-related” touch questions (e.g., “Amy touched your bottom, didn't she?”) than were children who were not touched. However, children who were asked tag questions responded at chance levels, thereby making high errors of commission in response to abuse-touch questions relative to their no-tag counterparts who responded to “abuse questions” accurately 93% of the time. Children who were asked tag questions assented at a higher rate to general forensic questions (“Amy took your picture, didn't she?”) than did children asked direct questions, and children assented at higher rates to “abuse-touch” questions than to general forensic questions. Results are discussed in terms of prior research on interviewing techniques and adult influence on children's testimony.     

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”.     

Toward a New Legal History of Capitalism and Unfree Labor: Law,Slavery, and Emancipation in the American Marketplace

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.     

Turning the Tables on Legal History: Parker's Common Law,History, and Democracy in America

Parker's Common Law, History, and Democracy in America joins an ongoing effort to turn the tables on “law and …” by replacing the familiar question “What can history, sociology, and cultural studies tell us about law?” with a new line of inquiry asking “What can law teach us about the reach and limits of disciplinary thinking?” In his study of the reception of common law into nineteenth‐century American jurisprudence, Parker unearths a notion of time based on stability and repetition that challenges the dominant modernist and historicist approach to the writing of law and history. Parker, however, shies away from drawing the full implications of this move and it remains unclear whether, in the final analysis, he escapes the spell of legal historicism.